EXHIBIT 2.1
WHEREVER CONFIDENTIAL INFORMATION IS OMITTED HEREIN (SUCH OMISSIONS ARE DENOTED
BY AN ASTERISK), SUCH CONFIDENTIAL INFORMATION HAS BEEN SUBMITTED SEPARATELY TO
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT
PATENT PURCHASE AGREEMENT
AGREEMENT dated as of March 9, 1999 between Repligen Corporation, a
Delaware corporation (including each of its successors, assigns and legal
representatives, "Buyer") and Xxxxxxxx X. Xxxx, a United States resident of 11
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XxXxxxxx Xxxx, Xxxxxxx, XX 00000 ("Xxxx"), and Autism Research Institute, a not-
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for-profit organization incorporated in the State of California ("ARI," together
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with Xxxx, the "Sellers").
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NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01. Definitions. (a) The following terms, as used herein, have the
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following meanings:
"Affiliate" means, with respect to any Person, any Person directly or
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indirectly controlling, controlled by, or under common control with such other
Person.
"Conveyance Documents" means (i) assignments of the Patent Applications in
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the Form attached hereto on Exhibit A and (ii) a Xxxx of Sale, in the form
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attached hereto as Exhibit B, conveying the Intellectual Property Rights from
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Sellers to Buyer.
"Closing Date" means the date of the Closing.
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"FDA" means the United States Food and Drug Administration, or the
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successor thereto.
"Governmental Authority" means any government, court, regulatory or
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administrative agency or commission, or other governmental authority, agency or
instrumentality, whether federal, state or local (domestic or foreign),
including, without limitation, the U.S. Patent and Trademark Office (the "PTO")
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and the U.S. National Institutes of Health.
"Intellectual Property Rights" means all intellectual property rights
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of any nature held by either of the Sellers relating to the use of secretin in
the prevention or treatment of autism or other human disorders, except for the
Patent Applications and except for literary, motion picture, television or
theatrical rights and the like.
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"Lien" means any mortgage, lien, pledge, charge, security interest or
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encumbrance of any kind, except for the UM Assignment (as defined in Section
3.09).
"NDA" means a complete new drug application and all supplements
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thereto filed with the FDA, including all documents, data and other information
concerning a Product covered by a Valid Claim which are necessary for, or
included in, FDA approval to market such Product as more fully defined in 21
C.F.R. (S)314.5 et seq., as amended from time to time.
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"Net Sales" means the aggregate U.S. dollar equivalent of xxxxxxxx of
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the Buyer for Products less the sum of the following: (a) discounts allowed in
amounts customary in the trade; (b) sales, tariff duties and/or use taxes
directly imposed on particular sales; (c) outbound transportation prepaid or
allowed; and (d) amounts allowed or credited on returns, and bad debts not to
exceed five percent (5%) of the total revenue of Buyer derived from sales of
Products.
"Patent Applications" means the United States Patent Application
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Serial No. 60/047,049 (Provisional Application), filed May 19, 1997; United
States Patent Application Serial No. 09/080,631, filed May 18, 1998; Patent
Cooperation Treaty Application No. WO 98/52593, filed May 19, 1998; United
States Patent Application Serial No. 60/088,575 (Provisional Application), filed
June 9, 1998; United States Patent Applications Serial No. 09/229,208, filed
January 13, 1999, and any and all related patents, patent applications and
invention disclosures, any and all related continuation, continuation-in-part,
and divisional applications, and any patents issuing therefrom, and any
extensions, reissues, re-examinations, renewals, substitutions related to any of
the foregoing (including without limitation remedies against infringements
thereof and rights of protection of an interest therein under the laws of all
jurisdictions) and any and all foreign counterparts of any of the foregoing,
including, but not limited to, each of the items listed on Schedule 1.01 hereto.
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"Person" means an individual, corporation, partnership, association,
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trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Product" shall mean any product which (a) is covered in whole or in
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part by a Valid Claim; or (b) is manufactured by using a process or is employed
to practice a process or method which is covered in whole or in part by a Valid
Claim.
"Purchased Assets" means the Patent Applications and the Intellectual
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Property Rights.
"Registrable Shares" shall mean the * Warrant Shares and the *
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Shares.
"Valid Claim" means a claim included in the Patent Applications which
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has not been on file for more than five years or which is included in an
unexpired United States or foreign patent which issues from one or more of the
Patent Applications and which shall not have been withdrawn, canceled or
disclaimed, nor held invalid by a court of competent jurisdiction in an
unappealed or unappealable decision.
* Confidential treatment requested.
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ARTICLE II
PURCHASE AND SALE
2.01. Purchase and Sale. Upon the terms and subject to the
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conditions of this Agreement, Buyer agrees to purchase from each Seller, and
each Seller agrees to sell, transfer, assign and deliver, or cause to be sold,
transferred, assigned and delivered, to Buyer at Closing, free and clear of all
Liens, all right, title and interest in and throughout the United States of
America, its territories and all foreign countries, in and to the Purchased
Assets.
2.02. Purchase Price. The purchase price (the "Purchase Price") for
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the Purchased Assets is as set forth below and shall be paid as follows:
(a) Buyer shall deliver to * at the Closing (i) One Hundred Fifty
Thousand Dollars ($150,000) by check or wire transfer and (ii) a warrant to
purchase up to Three Hundred Fifty Thousand (350,000) shares of common stock of
Buyer (the " * Warrant"), subject to the obligations of Buyer under Sections
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6.03 and 6.05 herein, such * Warrant substantially in the form attached
hereto as Exhibit C;
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(b) Buyer shall deliver to * at the Closing two hundred sixty-two
thousand five hundred (262,500) shares of common stock of Buyer (the " *
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Shares"), subject to the obligations of Buyer in Sections 6.04, 6.05 and 6.06
hereto.
(c) Buyer shall pay the following milestone payments (the "Milestone
Payments") and royalty payments (the "Royalty Payments"). Buyer shall pay
* percent ( * %) to Xxxx and * percent ( * %) to ARI of all
such Milestone Payments and Royalty Payments, respectively, in accordance with
the terms herein:
(i)
Milestone
Milestone Payment Amount
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Filing of an NDA with the FDA (or $ *
foreign equivalent) for a
clinical indication covered
by a Valid Claim.
Approval by the FDA (or foreign $ *
equivalent) of the marketing
of a Product addressing clinical
indication covered by a
Valid Claim ("FDA Approval");
provided that:
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* Confidential treatment requested.
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(x) each such Milestone Payment shall be made by Buyer to Sellers
within sixty (60) days after the occurrence of such milestone and shall be made
only one time based on the first time Buyer achieves each such milestone
regardless of how many times such milestones are achieved, and no payment shall
be owed for a milestone which is not reached; and
(y) the $ * Milestone Payment for FDA Approval shall be
fully creditable against future payments owed by Buyer to Sellers under Sections
2.02(c)(ii) and 2.02(d) of this Agreement.
(ii) Royalty Payments shall be made to Sellers in an amount equal to
* percent ( * %) of Net Sales of the Products within forty-five (45) days
after the end of the fiscal quarter in which the Company actually receives the
proceeds therefrom (subject to the limit on bad debts set forth in the
definition of Net Sales). If Buyer must acquire a license from any third party
in order to market the Product, royalties will be reduced by * percent
( * %) of the amount of any license fees paid to such third party, provided that
royalties payable by Buyer to the Sellers will never be reduced below
* percent ( * %) of Net Sales.
(d) If Buyer licenses all or part of the Purchased Assets, Buyer shall pay
Xxxx and XXX, * percent ( * %) and
* percent ( * %), respectively, of the revenue received by Buyer
from its licensee(s), within forty-five (45) days after the end of the fiscal
quarter in which the Buyer actually receives such revenue, as license payments,
milestone payments or royalties, but not as research and development payments or
payments for Products sold directly by Buyer as to which Royalty Payments are
required to be made under Section 2.02(c)(ii) above.
(e) Buyer will arrange for * to receive tax planning advice from Xxxxxx
Xxxxxxxx, independent accountants, for a period of three (3) years after the
Closing Date, and will pay up to five thousand dollars ($5,000) per year of the
cost of such advice.
(f) From and after the date of FDA Approval within the United States, Buyer
shall pay to the Sellers a minimum annual royalty of $ * of which
* percent ( * %) shall be paid to Xxxx and * percent ( * %)
shall be paid to ARI. Such minimum annual royalty shall be payable in four
equal installments within 45 days within the end of each fiscal quarter of
Buyer. Minimum annual royalty installments in each such period shall be
credited against earned royalties for that period otherwise payable to Sellers
in accordance with Section 2.02(c)(ii) and 2.02(d) above. The Buyer's
obligation to pay minimum royalties under this Section 2.02(f) shall be
suspended during any period when the FDA shall have suspended or revoked Buyer's
right to market secretin within the United States for use in the treatment of
autism; provided that Buyer shall continue to pay all earned royalties during
such period or periods.
2.03. Closing. The closing (the "Closing") of the purchase and sale of the
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Purchased Assets hereunder shall take place at the offices of McLane, Graf,
Xxxxxxxxx & Xxxxxxxxx Professional Association, 000 Xxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxxxxx simultaneously with the execution of this Agreement. At the Closing,
* Confidential treatment requested.
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(a) Buyer shall pay the Purchase Price to Sellers in accordance with the
terms of Sections 2.02(a) and 2.02(b) herein.
(b) Buyer and each Seller shall execute and deliver the Conveyance Documents
to which each is a party.
(c) Buyer shall execute and deliver to the Sellers a Collateral Assignment in
the form attached hereto as Exhibit D (the "Collateral Assignment"), in
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recordable form (together with such powers of attorney as may be necessary to
enable the Sellers to effect the assignment described in the Collateral
Assignment) collaterally assigning the Patent Applications to the Sellers: (i)
to secure Buyer's obligations set forth in Sections 2.02(f) and 6.01 of this
Agreement, and (ii) in the event Buyer ceases to conduct business, is
liquidated, is dissolved or initiates or is subjected to any proceedings for
relief in bankruptcy or other insolvency laws and such proceedings have not been
vacated or set aside within one hundred and twenty (120) days from the date of
commencement thereof.
(d) Seller and Buyer shall also execute and deliver all such other
instruments, documents and certificates as may be reasonably requested by the
other party that are necessary for the consummation at the Closing of the
transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Except as otherwise provided herein, the Sellers hereby severally and not
jointly represent and warrant to Buyer that:
3.01. Corporate Existence and Power of ARI. ARI represents and warrants to
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Buyer that ARI is a not-for-profit corporation duly incorporated, validly
existing and in good standing under the laws of the State of California, and has
all corporate powers and all licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
3.02. Corporate and Appropriate Authorization. ARI represents and warrants
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to Buyer that the execution, delivery and performance by ARI of this Agreement
and the Conveyance Documents, and the consummation by ARI of the transactions
contemplated hereby and thereby, are within ARI's corporate powers and have been
duly authorized by all necessary corporate action on the part of ARI. Each
Seller represents and warrants to Buyer that this Agreement and the Conveyance
Documents have been duly executed and delivered and constitute valid and binding
agreements of such Seller.
3.03. Governmental Authorization. The execution, delivery and performance
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by Sellers of this Agreement and each of the Conveyance Documents do not require
any notice to,
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action or consent by or in respect of, or filing with, any Governmental
Authority (other than the filing of patent assignments with the PTO and any
other applicable Governmental Authority).
3.04. Non-Contravention of ARI. ARI represents and warrants to Buyer that
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the execution, delivery and performance by ARI of this Agreement and each of the
Conveyance Documents does not and will not (i) contravene or conflict with the
corporate charter or bylaws of ARI; (ii) contravene or conflict with or
constitute a violation of any provision of any law or regulation binding upon or
applicable to ARI or the Purchased Assets which contravention, conflict or
violation would have a material adverse effect on the Purchased Assets or their
intended use; (iii) contravene or conflict with or constitute a violation of any
judgment, injunction, order or decree binding upon or applicable to either of
ARI or the Purchased Assets which contravention, conflict or violation would
have a material adverse effect on the Purchased Assets or their intended use; or
(iv) result in the creation or imposition of any Lien on any Purchased Asset.
3.05. Non-Contravention of Xxxx. Xxxx represents and warrants to Buyer that
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the execution, delivery and performance by Xxxx of this Agreement and each of
the Conveyance Documents does not and will not (i) contravene or conflict with
or constitute a violation of any provision of any law or regulation binding upon
or applicable to Xxxx or the Purchased Assets which contravention, conflict or
violation would have a material adverse effect on the Purchased Assets or their
intended use; (ii) contravene or conflict with or constitute a violation of any
judgment, injunction, order or decree binding upon or applicable to either of
Xxxx or the Purchased Assets which contravention, conflict or violation would
have a material adverse effect on the Purchased Assets or their intended use; or
(iii) result in the creation or imposition of any Lien on any Purchased Asset.
3.06. Title to Purchased Assets. Upon consummation of the transactions
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contemplated hereby, Buyer will have acquired good and marketable title in and
to each of the Purchased Assets, free and clear of all Liens.
3.07. [Intentionally Omitted.]
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3.08. Litigation. There is no action, suit, investigation or proceeding (or
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any basis therefor), of which either Seller has received written notice, pending
or, to the knowledge of either Seller, threatened, before any governmental
authority or arbitrator that has or could materially affect any Purchased Asset.
Sellers have not received written notice of any claims made by any Person with
respect to, or any actions, suits or other proceedings relating to, any
Purchased Assets which would have a material adverse effect on the proposed or
intended use of the Purchased Assets.
3.09. Intellectual Property. (a) Schedule 1.01 sets forth a true and
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complete list of the Patent Applications specifying as to each, as applicable
(i) the owner of such Patent Application; and (ii) the jurisdictions by or in
which each Patent Application has been filed, including the respective patent or
application numbers. There are no licenses, sublicenses or other agreements
relating to any Patent Application except as set forth in the Patent Assignment
Agreement dated
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October 19, 1998 between Xxxx and the University of Maryland ("UM") which sets
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forth the rights of UM with respect to the Diagnostic Method
(the "UM Assignment"), a true and complete copy of which has been provided to
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Buyer.
(b) Sellers have clear title to the Patent Applications (to the extent they
exist on the date hereof). To their knowledge, Sellers and each inventor listed
in the Patent Applications and the attorneys of record thereto have complied
with the PTO duty of candor and good faith in dealing with the PTO, including
the duty to disclose to the PTO all information known to be material to the
patentability of each of the Patent Applications. All assignments from each
inventor to, as the case may be, Sellers or to a predecessor in interest to
Sellers, have been executed and recorded with the PTO for each of the Patent
Applications. To the knowledge of either Seller, without inquiry or
investigation, there are no pending U.S. or foreign patent applications which,
if issued, would limit or prohibit the ability of Sellers to make, have made,
use, sell, or offer for sale the claimed subject matter of the Patent
Applications. To the knowledge of the Sellers, without inquiry or
investigation, and except to the extent disclosed on Schedule 3.09(b), there is
no pending or threatened action, suit, proceeding or claim by others that either
Seller is infringing or would infringe any patent of others by making, having
made, using, selling, or offering for sale the claimed subject matter of the
Patent Applications; and the Patent Applications if accepted by the PTO as
filed, would not be owned by third parties.
(c) Xxxx does not have any reason to believe that UM does not intend to
comply with its obligations pursuant to the UM Assignment. Neither Seller has
granted any licenses or other rights and neither Seller has obligations to grant
licenses or other rights with respect to the Patent Applications, and, except
for the UM Assignment and the Joint Use Agreement between the Sellers dated as
of February 12, 1999 (a copy of which has been delivered to the Buyer), there
are no other contracts, arrangements, understandings or other documents relating
to any Patent Application.
(d) There was no public disclosure of the invention, or first sale of a
product, relating to any of the Patent Applications (whether written, oral or
electronic) prior to May 19, 1997, known to either Seller (without inquiry or
investigation) and willfully excluded from Schedule 3.09(b).
(e) Notwithstanding anything in this Agreement or the Conveyance Documents to
the contrary, except as expressly set forth in this Section 3.09, the Sellers
make no representation or warranty as to the patentability of any of the
Intellectual Property Rights or the validity or enforceability of any United
States or foreign patents issuing thereon, or as to the success of any effort to
obtain FDA approval.
3.10. Finders' Fees. There is no investment banker, broker, finder or other
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intermediary which has been retained by or is authorized to act on behalf of
either Seller who might be entitled to any fee or commission from Buyer or any
of its Affiliates upon consummation of the transactions contemplated by this
Agreement.
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3.11. Other Information. Neither this Agreement nor any of the exhibits and
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schedules appended hereto contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained therein not misleading.
3.12. Investment. ARI represents and warrants to Buyer that ARI is
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acquiring the * * and Xxxx represents and warrants to Buyer that Xxxx
is acquiring the * * * * * * * * * *
(collectively, with the * * the "Securities") for such party's
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respective account, for investment purposes only, and not with a view to the
sale, assignment, transfer or other distribution thereof, other than in
compliance with the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"). Each Seller recognizes that the Common Stock of
the Company, including the Securities, has not been registered under the
Securities Act, and such Seller agrees that it will not sell, assign, transfer,
or otherwise distribute the Securities in violation of the Securities Act.
3.13. Investigation. Each Seller represents and warrants to Buyer that such
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Seller is able to bear the economic risk of loss of its investment in the
Securities of Buyer, has been granted the opportunity to make a thorough
investigation of the affairs of Buyer, and has availed itself of such
opportunity either directly or through its authorized representatives.
3.14. Reliance by Xxxx. Xxxx represents and warrants to Buyer that Xxxx has
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been advised that the * * * * * * * * * has not been and is
not being registered under the Securities Act or under the "blue sky" laws of
any jurisdiction and that the Buyer, in issuing the * * * * * * *
* * *, is relying upon, among other things, the representations and
warranties of Xxxx contained in this Section 3.14 in concluding that such
issuance is a "private offering" and does not require compliance with the
registration provisions of the Securities Act.
3.15 Reliance by ARI. ARI represents and warrants to Buyer that ARI has
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been advised that the * * have not been and are not being registered
under the Securities Act or under the "blue sky" laws of any jurisdiction and
that the Buyer, in issuing the * * , is relying upon, among other things,
the representations and warranties of ARI contained in this Section 3.15 in
concluding that such issuance is a "private offering" and does not require
compliance with the registration provisions of the Securities Act.
3.16 Legends. * understands and agrees that each certificate
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representing * * * shall bear the legend set forth on the * * ,
* * * * * * * * thereof shall bear the legend substantially in
the form set forth below; * understands and agrees that each certificate
representing the * * delivered to * hereunder shall bear the legend
substantially as follows:
"The shares represented hereby have not been registered under the
Securities Act of 1933, as amended, and may not be sold or transferred
unless the registration provisions of said Act have been complied with
or unless in the opinion of counsel satisfactory to the Company both
as to opinion and counsel compliance with such provisions is not
required."
* Confidential treatment requested.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Sellers that:
4.01. Organization and Existence. Buyer is a company duly incorporated,
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validly existing and in good standing under the laws of Delaware and has all
applicable powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
4.02. Corporate Authorization. The execution, delivery and performance by
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Buyer of this Agreement and each of the Conveyance Documents to which it is a
party and the consummation by Buyer of the transactions contemplated hereby and
thereby are within the powers of Buyer and have been duly authorized by all
necessary action on the part of Buyer. This Agreement has been duly executed
and delivered by the Buyer and constitutes a valid and binding agreement of
Buyer. The issuance, sale and delivery of the * Warrant and the * Shares
have been duly authorized by all necessary action on the part of Buyer, and when
issued, sold and delivered in accordance with the terms hereof, will be duly and
validly issued and outstanding, fully paid and nonassessable, and free from all
preemptive or similar rights therein. The issuance, sale and delivery of the
* Warrant Shares (as defined below) have been duly authorized by all
necessary action on the part of Buyer, and have been duly reserved for issuance
upon exercise of the * Warrant. When issued, sold and delivered in
accordance with the * Warrant, the * Warrant Shares will be validly
issued and outstanding, fully paid and nonassessable, and free from all
preemptive or similar rights therein.
4.03. Governmental Authorization. The execution, delivery and performance
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by Buyer of this Agreement and each of the Conveyance Documents to which it is a
party does not require any action by or in respect of, or filing with, any
Governmental Authority (other than the filing of patent assignments with the
PTO).
4.04. Non-Contravention. The execution, delivery and performance by Buyer
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of this Agreement and each of the Conveyance Documents to which it is a party
does not and will not (i) contravene or conflict with the corporate charter or
by-laws of Buyer, (ii) contravene or conflict with or constitute a violation of
any provision of any law or regulation binding upon or applicable to Buyer; or
(iii) contravene or conflict with or constitute a violation of any judgment,
injunction, order or decree binding upon or applicable to Buyer.
4.05. Finders' Fees. There is no investment banker, broker, finder or other
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intermediary that has been retained by or is authorized to act on behalf of
Buyer who might be entitled to any fee or commission from Buyer upon
consummation of the transactions contemplated by this Agreement.
* Confidential treatment requested.
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4.06. Litigation. There is no action, suit, investigation or proceeding
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pending against, or to the knowledge of Buyer threatened against or affecting,
Buyer before any court or arbitrator or any governmental body, agency or
official which in any matter challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated hereby or would have a material
adverse effect on Buyer's ability to perform its obligations under this
Agreement.
4.07 SEC Documents. Buyer has furnished or made available to each Seller or
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such Seller's counsel true and complete copies of Buyer's Annual Report on Form
10-K for the fiscal years ending March 31, 1996, 1997 and 1998, as amended;
Buyer's Quarterly Reports on Form 10-Q for the fiscal quarters ending June 30,
September 30 and December 31, 1996, 1997 and 1998, respectively, and its Proxy
Statement relating to its Annual Meeting of Stockholders for the years ending
March 31, 1996, 1997 and 1998 (collectively, the "SEC Documents"). As of their
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respective filing dates, each of the SEC Documents complied in all material
respects with the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the Securities
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and Exchange Commission ("SEC") promulgated thereunder.
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ARTICLE V
COVENANTS OF SELLERS
5.01. Confidentiality. Each Seller will hold, and will use reasonable
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commercial efforts to cause its officers, directors, employees, accountants,
counsel, consultants, advisors and agents to hold, in confidence, unless
compelled to disclose by judicial or administrative process or by other
requirements of law, all confidential documents and information concerning Buyer
or the Purchased Assets, which information shall be deemed to be confidential
only if identified in writing as confidential or, if delivered orally, confirmed
in writing as confidential within 30 days after delivery.
5.02. Attorney of Record. As promptly as practicable after the Closing, but
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in any event within 10 days after the Closing, Sellers shall take all necessary
actions to name Xxxxx Xxxxx, Esq., of Fish and Xxxxxxxxxx, as attorney of record
for the Patent Applications.
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ARTICLE VI
COVENANTS OF BUYER
6.01. Certain Obligations of Buyer. Buyer shall use best efforts in a
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timely manner:
(a) Consistent with FDA rules and regulations, to carry out clinical testing of
secretin for use in the treatment of autism;
(b) To secure FDA Approval in the United States of the use of secretin in the
treatment of autism;
(c) To obtain reasonable patent protection for the use of secretin for the
treatment of autism;
(d) To itself or through third parties develop manufacture, market, sell and
distribute secretin for use in the treatment of autism.
6.02. Certain Obligations of Buyer to develop the use of secretin.
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To the extent that Buyer in its good faith judgment deems it commercially
reasonable to do so, Buyer shall use commercially reasonable efforts to
investigate the feasibility of using secretin for use in the treatment of the
behavioral/neurological conditions (other than autism) referred to in the Patent
Applications.
6.03. Registration of * Warrant Shares. Buyer will use best
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efforts as promptly as practicable after full exercise of the * Warrant to
file a registration statement with the SEC to register the shares purchased upon
exercise of the * Warrant (the " * Warrant Shares") for resale in
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accordance with applicable federal securities laws, and will use commercially
reasonable efforts to maintain the effectiveness of such registration statement
until the earlier of (i) the expiration of the one year holding period relating
to the * Warrant Shares under Rule 144 of the Securities Act, or (ii) the
date all such * Warrant Shares have been sold by * ; provided that in the
event that Buyer has not remained current with its filing of quarterly, annual
or other reports with the SEC as required by the Exchange Act and/or Rule
144(c)(1) of the Securities Act, Buyer shall use commercially reasonably efforts
to maintain the effectiveness of such registration statement until the
expiration of a two year holding period relating to the * Warrant Shares
under Rule 144 of the Securities Act.
6.04. Registration of * Shares. Buyer will use best efforts to
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file a registration statement with the SEC to register the * Shares for resale
in accordance with applicable federal securities laws within thirty (30) days
after the Closing Date, and will use commercially reasonable efforts to maintain
the effectiveness of such registration statement until the earlier of (i) the
date one year following the Closing Date, (ii) the date all such * shares have
been sold by * ; provided that in the event that Buyer has not remained current
with its filing of quarterly, annual or other reports with the SEC as required
by the Exchange Act and/or Rule 144(c)(1)
* Confidential treatment requested.
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of the Securities Act, Buyer shall use commercially reasonably efforts to
maintain the effectiveness of such registration statement for two years
following the Closing Date.
6.05. General Obligations with respect to the Registration of the
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Registrable Shares.
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(a) Effectiveness; Suspension.
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(i) From time to time during the applicable effectiveness period for
each registration statement covering the Registrable Shares, Buyer will amend or
supplement the applicable registration statement and the prospectus contained
therein as and to the extent necessary to comply with the federal securities law
and any applicable state securities or regulation, subject to the following
limitations and qualifications.
(ii) Buyer will notify the transfer agent of Buyer (A) when a
prospectus or any prospectus supplement or amendment covering the Registrable
Shares has been filed and when the same becomes effective, (B) of any request by
the SEC or any other federal or state Governmental Authority during the
effectiveness period for amendments or supplements to the applicable
registration statement covering the Registrable Shares, (C) of the issuance by
the SEC or any other Governmental Authority of any stop order suspending the
effectiveness of the applicable registration statement covering the Registrable
Shares, or the initiation of any proceedings for that purpose, (D) of the
receipt by Buyer of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, or (E) of the happening of any event which makes any statement
made in the applicable registration statement covering the Registrable Shares,
or related prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or which requires the making
of any changes in the applicable registration statement covering the Registrable
Shares, or prospectus so that it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(iii) Notwithstanding any other provision of this Agreement, Buyer
will have the right at any time upon the happening of any event of the kind
described in clauses B-E in paragraph (ii) above, or upon the good faith
judgment of Buyer's Board of Directors after consultation with counsel that it
is advisable to suspend the use of the prospectus covering the Registrable
Shares, because the sale of such Registrable Shares, pursuant to such prospectus
would be reasonably likely to cause a violation of the Securities Act or the
Exchange Act and result in potential liability to Buyer, and upon written notice
to each holder of Registrable Shares registered thereunder (a "Holder"), to
require that such Holder suspend further open market offers and sales of
Registrable Shares for a reasonable period of time, which period shall not
exceed forty-five (45) days for each such event or an aggregate of ninety (90)
days during the effectiveness period with respect to the applicable registration
statement (the "Suspension Right"). In the event Buyer exercises the Suspension
Right, such suspension will continue for the period of time reasonably necessary
for disclosure to occur at a time that is not detrimental to Buyer and its
stockholders as determined in good faith by Buyer after consultation with
counsel
-13-
or until copies of a supplemental or amended prospectus becomes effective. Buyer
will promptly give each Holder notice of any such suspension and the termination
of such suspension and will use all reasonable efforts to minimize the length of
the suspension.
(b) Expenses. Buyer shall pay all of the expenses incurred in
--------
connection with filing each registration statement with respect to the
Registrable Shares but shall not be liable for (i) any discounts or commissions
to any broker or underwriter attributable to the shares being registered and
similar charges, (ii) legal fees and disbursements of counsel for the selling
holders, or (ii) any stock transfer taxes incurred in respect of such registered
shares.
(c) Notice and Approval. Other than sales made within ten (10)
-------------------
business days of the effectiveness of the applicable registration statement, if
any Holder shall propose to sell any Registrable Shares pursuant to its
applicable registration statement, it shall notify Buyer of its intent to do so
(including the proposed manner and timing of all sales) at least two full
trading days prior to such sale, and such notice, unless otherwise specified in
such notice, shall be deemed to constitute a representation that any information
previously supplied to Buyer by such Holder expressly for inclusion in the
applicable registration statement (as the same may have been superseded by
subsequent such information) is accurate as of the date of such notice. At any
time within a two trading-day period, Buyer may refuse to permit the Holder to
resell any Registrable Shares pursuant to the applicable registration statement
based on the happening of any event of the kind described in clauses B-E of
Section 6.05(a)(ii) above; provided that in order to exercise this right, Buyer
--------
must deliver a certificate in writing to the Holder to the effect that a delay
in such sale is necessary because a sale pursuant to the applicable registration
statement in its then-current form without the addition of material, non-public
information about Buyer, or because of a stop order suspending the effectiveness
of the applicable registration statement, could constitute a violation of the
federal securities laws.
(d) Delivery of Prospectus. For any offer or sale of any of the
----------------------
Registrable Shares by a Holder in a transaction that is not exempt under the
Securities Act, the Holder, in addition to complying with any other federal
securities laws, shall deliver a copy of the final prospectus (or amendment of
or supplement to such prospectus) of Buyer covering the Registrable Shares in
the form furnished to the Holder by Buyer to the purchaser of any of the
Registrable Shares on or before the settlement date for the purchase of such
Registrable Shares.
(e) Copies of Prospectuses. Subject to the provisions of this
----------------------
Section, when a Holder is entitled to sell and gives notice of its intent to
sell Registrable Shares pursuant to the applicable registration statement, Buyer
shall, within two trading days following the request, furnish to such Holder a
reasonable number of copies of any prospectus, or a supplement to or an
amendment of such prospectus, in conformity with the requirements of the
Securities Act, as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus shall not as of the date
of delivery to the Holder include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing.
-14-
6.06. Sale of * Shares. During the first ninety (90) days after
------------------
the Closing Date, Buyer will attempt to locate a suitable purchaser for up to
one hundred thousand (100,000) of the * Shares. If, at the end of such ninety
(90) day period, * has been unable to sell at least one hundred thousand
(100,000) of the * Shares at a price equal to or greater than the exercise
price of the * Warrant, * shall be entitled to cause Buyer to
repurchase a number of * Shares equal to the difference between one hundred
thousand (100,000) and the number of shares which * has been able to sell
during such ninety (90) day period; provided that if Buyer presents the
-------------
opportunity to * to sell the * Shares in accordance with the terms
herein, and * refuses to consummate such sale for any reason (other than
its good faith belief, upon advice of counsel, that effecting such sale would
violate the Securities Act), Buyer shall only have the obligation to purchase
the number of * Shares equal to one hundred thousand (100,000) less the
sum of the number of * Shares which * has sold and has refused to sell
pursuant to the terms herein. The purchase price for such repurchase by Buyer
of the * Shares shall be the exercise price per share of the * Warrant.
Notwithstanding anything to the contrary herein, in order to exercise its
rights under this Section 6.06, * shall notify Buyer in writing no later
than ten (10) days after the expiration of the ninety (90) day period, of the
number of * Shares that * would like Buyer to repurchase. Within thirty
(30) days after receipt of such notice, Buyer shall repurchase the * Shares
for cash in accordance with the terms herein. * rights herein to cause
Buyer to repurchase the * Shares, to the extent unexercised, shall
terminate forever at the end of the ten (10) day period following the ninety
(90) day period referenced above.
6.07. Notice of FDA Approval. Buyer shall provide Sellers with
----------------------
timely notice of the completion of any Milestone referred to under Section 2.02
hereof.
ARTICLE VII
COVENANTS OF BUYER AND SELLERS
7.01. Efforts; Further Assurances. (a) Subject to the terms and
---------------------------
conditions of this Agreement, each party will use its commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary under applicable laws and regulations to consummate
the transactions contemplated by this Agreement; Sellers and Buyer agree to
execute and deliver such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary in order to
consummate or implement expeditiously the transactions contemplated by this
Agreement and to vest in Buyer good and marketable title to the Purchased
Assets.
(b) Without limiting the foregoing, each Seller further agrees for
itself and its successors and assigns to execute upon request any other lawful
documents and likewise to perform any other lawful acts which may be necessary
or desirable to secure fully for Buyer all right, title and interest in and to
each of the Purchased Assets, including, but not limited to, the execution of
substitution, reissue, divisional or continuation patent applications; and
preliminary
* Confidential treatment requested.
-15-
or other statement or the giving of testimony in any interference or other
proceeding in which the Purchased Assets or any applications or patent directed
thereto or derived therefrom may be involved. Each Seller agrees (i) to provide
such reasonable assistance to Buyer as Buyer may request in connection with the
prosecution of the Patent Applications and any action against third parties
claiming infringement of any of the Purchased Assets and (ii) never to contest
or assist any third party in contesting, the validity or enforceability of any
Valid Claim.
(c) Each Seller hereby constitutes and appoints, effective as of the
Closing upon payment of the Purchase Price, Buyer and its successors and assigns
as the true and lawful attorney of such Seller with full power of substitution
in the name of Buyer or in the name of such Seller, but for the benefit of Buyer
(i) to collect for the account of Buyer any items of Purchased Assets and (ii)
to prosecute all proceedings which Buyer may in its sole discretion deem proper
in order to assert or enforce any right, title or interest in, to or under the
Purchased Assets, and to defend or compromise any and all actions, suits or
proceedings in respect of the Purchased Assets, whether based on a claim arising
prior to or after the Closing Date. Buyer shall be entitled to retain for its
account any amounts collected pursuant to the foregoing powers, including any
amounts payable as interest in respect thereof.
(d) Subject to Section 10.03 hereof, Buyer shall pay all expenses
incurred by Sellers from and after the Closing Date in complying with this
Section 7.01 provided that such expenses are incurred at the request of Buyer or
approved in advance by Buyer (which approval shall not be unreasonably withheld
or delayed).
7.02. Confidentiality. Buyer and Sellers agree not to disclose the
---------------
terms of any agreement between them or directly or indirectly identify the other
parties in a press release, news letter, electronic communication, shareholder
letter or other public disclosure without prior permission except to the extent
that the information is in the public domain or the disclosure is required by
law. All medical information including names, medical records, status,
treatments or outcomes of treatments concerning any relatives of any party to
the agreement is confidential unless the information is already in the public
domain. Notwithstanding the foregoing, the parties acknowledge that Buyer may
issue a press release announcing the transactions contemplated by this Agreement
after execution of this Agreement. The form and timing of such press release
shall be discussed with the Sellers prior to its release and any direct or
indirect reference to the Sellers or the use of the consideration payable
hereunder shall be subject to their prior approval.
7.03 Royalty Matters.
---------------
(a) At the time of payment of the royalties provided for in Section 2.4
hereof, Buyer shall deliver to Sellers a written report showing its computation
of its Net Sales and of the royalties due under this Agreement upon such Net
Sales by Buyer. All revenues shall be segmented in each such report on a
country-by-country basis, including the rates of exchange used to convert such
royalties
-16-
to United States dollars from the currency in which such sales were made. For
the purposes hereof, the rates of exchange to be used for converting royalties
hereunder to United States dollars shall be those in effect for the purchase of
dollars at New York, New York on the day five business days prior to the date on
which payment is due.
(b) Where royalties are due the Sellers hereunder for sales of Products in a
country where, by reason of currency regulations or taxes of any kind, it is
impossible or illegal for Buyer to transfer royalty payments to the Sellers for
Net Sales in that country, such royalties shall be deposited in whatever
currency is allowable by the person or entity not able to make the transfer for
the benefit or credit of the Sellers in an accredited bank in that country that
is acceptable to the Sellers.
(c) Buyer shall keep full, true and accurate books of accounts and other
records containing all information and data which may be necessary to ascertain
and verify the royalties payable hereunder. During the term of this Agreement
and for a period of one year following its termination, Sellers shall have the
right from time to time (not to exceed twice during each calendar year) to
inspect, or have an agent, accountant or other representative inspect, such
books, records and supporting data.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.01. Survival. The representations and warranties of the parties hereto
--------
contained in this Agreement or in any certificate or other writing delivered
pursuant hereto or in connection herewith shall survive the Closing for a period
of two years except to the extent limited by Section 8.03; provided that the
--------
agreements in Articles II through VIII shall survive the Closing until the
expiration of this Agreement pursuant to Article IX.
8.02. Indemnification. (a) Subject to the limitations set forth in Section
---------------
8.03, Sellers hereby severally and not jointly indemnify Buyer and Buyer's
Affiliates against and agree to hold each of them harmless from any and all
damage, loss, liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any action, suit or proceeding) (collectively, "Loss") incurred
----
or suffered by Buyer or any of its Affiliates arising out of any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by either Seller pursuant to this Agreement.
(b) Subject to the terms herein, Buyer hereby indemnifies each Seller
and any of such Seller's Affiliates against and agrees to hold each of them
harmless from any and all Loss incurred or suffered by such Seller or any of
such Seller's Affiliates arising out of:
(i) any misrepresentation or breach of warranty, covenant or agreement
made or to be performed by Buyer pursuant to this Agreement; or
-17-
(ii) any product liability, adverse reactions or injury from the use
of any Product manufactured by or for Buyer or tested in a clinical study
sponsored or licensed by Buyer.
8.03. Procedures; No Waiver; Exclusivity. (a) The party seeking
----------------------------------
indemnification under Section 8.02 (the "Indemnified Party") agrees to give
-----------------
prompt notice to the party against whom indemnity is sought (the "Indemnifying
------------
Party") of the assertion of any claim, or the commencement of any suit, action
-----
or proceeding in respect of which indemnity may be sought under such Section;
provided that the failure to give such notice shall not affect the Indemnified
--------
Party's rights hereunder except to the extent the Indemnifying Party is
materially prejudiced by such failure. The Indemnifying Party may, and at the
request of the Indemnified Party shall, participate in and control the defense
of any such third party suit, action or proceeding at its own expense. The
Indemnifying Party shall not be liable under Section 8.02 for any settlement
effected without its prior written consent of any claim, litigation or
proceeding in respect of which indemnity may be sought hereunder; provided that
--------
such written consent may not be unreasonably withheld.
(b) After the Closing, subject to the terms herein, Section 8.02 will
provide the exclusive remedy for Buyer for any misrepresentation, breach of
warranty, covenant or other agreement by Sellers or other claim by Buyer arising
out of this Agreement or the transactions contemplated hereby.
8.04 Absolute Limit on Sellers' Liability; No Recourse to Other
----------------------------------------------------------
Assets
------
(a) Notwithstanding anything in this Agreement or the Conveyance
Documents to the contrary, the Sellers' indemnification obligations pursuant to
Section 8.02 shall expire unless notice of a claim for indemnification is given
to the Sellers before the date six months after the date of the first FDA
Approval. Thereafter, the Sellers shall have no further obligation to the Buyer
under this Agreement other than to perform their obligations under Article V,
Section 6.05, Section 7.01 and Section 7.02 hereof.
(b) Notwithstanding anything in this Agreement or the Conveyance
Documents to the contrary, each Seller's aggregate liability shall not exceed
100% of the Milestone Payments and 50% of the Royalty Payments paid or payable
to such Seller, less any taxes paid or payable thereon by such Sellers. Buyer
shall have no recourse to any assets of either Seller except such Milestone
Payments and Royalty Payments.
8.05. Certain Remedies. Notwithstanding anything to the contrary
----------------
herein, in the event that either Seller has a claim against Buyer arising out of
a material violation of the terms of Section 2.02(f) or 6.01 of this Agreement
as to any particular Patent Application and Buyer shall have failed to cure
ninety days after notice from Seller of such material violation, such Seller's
sole and exclusive remedy shall be to recover from Buyer the Collateral (as
defined in the Collateral Assignment) pursuant to the terms of the Collateral
Assignment. As to any other misrepresentation, breach of warranty, covenant or
other agreement or other claim arising out of
-18-
any material violation of this Agreement by Buyer, each Seller shall be entitled
to any remedy available at law or in equity.
8.05. Limitations of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER
------------------------
PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOSS OF PROFITS
OR SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND WHATSOEVER.
8.06. Force Majeure. No party shall be liable for failure or delay
-------------
in performing any of its obligations hereunder if such failure or delay is
occasioned by compliance with any governmental regulation, request or order, or
by circumstances beyond the reasonable control of the party so failing or
delaying, including, without limitation, Acts of God, war, insurrection, fire,
flood, accident, labor strikes, work stoppage or slowdown (whether or not such
labor event is within the reasonable control of the parties), or inability to
obtain raw materials, supplies, power or equipment necessary to enable such
party to perform its obligations hereunder. Each party shall (a) promptly
notify the other party in writing of any such event of force majeure, the
expected duration thereof and its anticipated effect on the ability of such
party to perform its obligations hereunder, and (b) make reasonable efforts to
remedy any such event of force majeure.
ARTICLE IX
TERMINATION
9.01. Termination. This Agreement shall terminate upon the expiration
-----------
of the last to expire Valid Claim. This Agreement shall also terminate upon any
recovery by Sellers of the Purchased Assets pursuant to the Collateral
Assignment.
9.02. Effect of Termination. If this Agreement is terminated pursuant
---------------------
to Section 9.01, such termination shall be without liability of any party (or
any stockholder, director, officer, employee, agent, consultant or
representative of such party) to any other party to this Agreement; provided
--------
that obligations under Article VIII, as well as the obligations of Buyer to pay
Royalty Payments or Milestone Payments earned prior to such termination, shall
survive any such termination..
-19-
ARTICLE X
MISCELLANEOUS
10.01. Notices. All notices, requests and other communications to
-------
either party hereunder shall be in writing (including telex, telecopy or similar
writing with confirmed receipt of transmission) and shall be given,
(a) if to Buyer, to:
Repligen Corporation
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Xxxxxx Xxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) if to Sellers, to:
Autism Research Institute
0000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
and
Xxxxxxxx X. Xxxx
00 XxXxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to:
McLane, Graf, Xxxxxxxxx & Xxxxxxxxx, P.A.
000 Xxx Xxxxxx
P. O. Xxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt. All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt if delivered by hand or
-20-
overnight courier service or sent by fax prior to 4:00 p.m. EST or on the date
five business days after dispatch by certified or registered mail if mailed, in
each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 10.01.
10.02. Amendments; No Waivers. (a) Any provisions of this Agreement may
----------------------
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Buyer and both Sellers, or in the case
of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by either party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. Except to the extent expressly
provided otherwise in this Agreement, the rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
10.03. Expenses. All costs and expenses incurred in connection with the
--------
negotiation, preparation, execution or delivery of this Agreement shall be paid
by the party incurring such cost or expense.
10.04. Successors and Assigns. The provisions of this Agreement shall
----------------------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No party to this Agreement shall assign any
rights under this Agreement to any party without the written consent of the
other parties hereto except that nothing herein shall prohibit or restrict (a)
Buyer from assigning its rights and obligations hereunder to any Affiliate of
Buyer or (b) Xxxx from assigning her rights hereunder to any Person, including,
without limitation, Xxxx Xxxx, any revocable trust of which Xxxx or Xxxx Xxxx is
the grantor, or to any not-for-profit organization.
10.05. Governing Law; Jurisdiction. This Agreement shall be construed
---------------------------
in accordance with and governed by the law of the Commonwealth of Massachusetts
and the United States of America. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court.
10.06. Counterparts; Effectiveness. This Agreement may be signed in any
---------------------------
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective on the date of signature of the last party to
sign this Agreement.
10.07. Entire Agreement. This Agreement, the Exhibits hereto, the
----------------
Schedules and the Conveyance Documents constitute the entire agreement between
the parties with respect to the subject matter hereof and supersede all prior
agreements, understandings and negotiations, both written and oral, between the
parties with respect to the subject matter of this Agreement, including the
Letter of Intent dated as of February 18, 1999 (the "Letter of Intent") by and
----------------
among the Buyer and Sellers and certain other parties thereto. To the extent
any terms of this
-21-
Agreement and surviving terms of the Letter of Intent conflict, the terms of
this Agreement shall govern. No representation, inducement, promise,
understanding, condition or warranty not set forth or referred to herein has
been made or relied upon by either party hereto. Neither of this Agreement, nor
any provision hereof, is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
10.08. Captions. The captions herein are included for convenience of
--------
reference only and shall be ignored in the construction or interpretation
hereof.
10.09 Severability. If any provision of this Agreement shall be held to
------------
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
[Signature Page to Follow Immediately]
-22-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
REPLIGEN CORPORATION
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxx
Title: President, CEO
Date: March 9, 1999
AUTISM RESEARCH INSTITUTE
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx, PhD
Title: Director
Date: March 9, 1999
/s/ Xxxxxxxx X. Xxxx
---------------------------
Xxxxxxxx X. Xxxx
Date: March 9, 1999
