1
Exhibit 10.1
FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT
BY AND AMONG
IMMUNOGEN, INC.,
BIOTECHNOLOGY VENTURE PARTNERS, L.P.,
BIOTECHNOLOGY VALUE FUND, L.P.,
BIOTECHNOLOGY VALUE FUND, LTD.
AND
INVESTMENT 10, L.L.C.
This FIRST AMENDMENT TO THE STOCK PURCHASE AGREEMENT (the
"Agreement") made on the 10th day of December, 1997 by and among ImmunoGen,
Inc., a Massachusetts corporation (the "Company"), Biotechnology Venture
Partners, L.P. ("BVP"), a Delaware limited partnership, Biotechnology Value
Fund, L.P. ("BVF 1"), a Delaware limited partnership, Biotechnology Value Fund,
Ltd. ("BVF 2"), a Cayman Island corporation and Investment 10, L.L.C. ("I10"),
an Illinois limited liability company (collectively BVP, BVF 1, BVF 2 and I10
are referred to as the "Investor") is made as of the 18th day of March, 1998
(this "Amendment").
WHEREAS, the Company desires to issue and sell to Investor and
Investor desires to acquire shares (the "Preferred Shares") of the Company's
Series E convertible preferred stock, par value $.01 per share, convertible into
shares of the Company's Common Stock, par value $.01 per share ("Common Stock"),
and having the designations, powers, preferences, and other terms set forth on
EXHIBIT A to the Agreement;
WHEREAS, the Company desires to issue and sell to Investor and
Investor desires to acquire common stock purchase warrants substantially in the
form of EXHIBIT B to the Agreement (each, a "Warrant" and collectively, the
"Warrants") to purchase shares of the Company's common stock, par value $.01 per
share (the "Warrant Shares"); and
WHEREAS, the Company and the Investor desire to amend the terms
concerning the closings for the above-referenced transactions.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. SECTION 1.4. Section 1.4 of the Agreement is hereby deleted in
its entirety and shall be amended to read as follows:
PAYMENT. The Investor agrees to make payment of $1,000,000, $500,000
and $1,500,000 for the 800, 400 and 1,200 Preferred Shares being delivered at
the Initial Closing,
2
Second Closing and Final Closing (each as hereinafter defined), respectively, by
certified check or wire transfer on the applicable Closing Date to an account
specified by the Company.
2. SECTION 2.1. Section 2.1 of the Agreement is hereby deleted in
its entirety and shall be amended to read as follows:
CLOSING. Subject to the satisfaction of the conditions set forth
in Articles VI and VII hereof, (i) the initial closing for $1,000,000 (the
"Initial Closing") shall take place at a place and time (the "Initial Closing
Date") mutually agreed by the Company and the Investor, but in any event no
later than December 10, 1997; (ii) the second closing for $500,000 (the "Second
Closing") shall take place (the "Second Closing Date") within three (3) business
days after the Company delivers to BVF, Inc. (the "BVF Representative") a signed
binding agreement between the Company and Pharmacia & Upjohn AB ("P&U") in the
form attached as EXHIBIT A (the "Letter Agreement"); and (iii) the final closing
(the "Final Closing") for $1,500,000 shall take place (the "Final Closing Date")
within three (3) business days after the earliest to occur of the following
events: (i) the Company delivers to the BVF Representative the signed license
agreement referenced in the Letter Agreement (the "License Agreement") on terms
substantially similar to those set forth in the Letter Agreement; (ii) an
amendment to the Letter Agreement is executed by the Company and P&U, which
amendment provides for the deletion of the entire Section 9.3 of the Letter
Agreement and no other material change to the terms of the Letter Agreement; or
(iii) an amendment to the Letter Agreement is executed by the Company and P&U,
which amendment clarifies that if the Company has commenced arbitration under
Section 10.2 of the Letter Agreement prior to the date set forth in Section 1 of
the Letter Agreement, then the Company shall be permitted to continue to pursue
such arbitration even after the date set forth in said Section 1 and the date
set forth in Section 1 of the Letter Agreement shall be extended until the
conclusion of such arbitration. Unless stated otherwise, as hereinafter used the
terms Initial Closing, Second Closing and Final Closing shall be referred to as
the "Closing" and the Initial Closing Date, Second closing Date and Final
Closing Date shall be referred to as the "Closing Date." At each Closing, (a)
the Company shall deliver to the Investor one or more stock certificates
registered in their names for an aggregate of 800, 400 and 1,200 Preferred
Shares, respectively, against payment to the Company of the purchase price
therefor pursuant to Section 1.4, and (b) the Company shall deliver to the
Investor the applicable portion of the Warrant registered in their name to
purchase the number of shares indicated therein.
3. SECTION 8.2. Section 8.2(b) of the Agreement is hereby deleted
in its entirety and shall be amended to read as follows:
The Investor, jointly and severally, 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 the Investor in this Agreement; provided, however, that in no
event shall the Investor's liability under this Section 8.2(b) for failure to
make the payments required by Section 1.4 exceed the difference between (i) $3
million and (ii) the aggregate amount of payments made by the Investor pursuant
to Section 1.4; and
2
3
4. SECTION 9.2. Section 9.2 of the Agreement is hereby deleted in
its entirety and shall be amended to read as follows:
ENTIRE AGREEMENT. This Agreement, including amendments hereto,
exhibits, or other documents referred to herein, 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
shall affect, or be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
5. SECTION 9.14. Section 9.14 of the Agreement is hereby deleted in
its entirety and shall be amended to read as follows:
FURTHER ASSURANCES. In case at any time after any Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, the Company and the Investor 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
therefor under Article VIII).
6. SCHEDULE 3.4. Schedule 3.4 of the Agreement is hereby deleted in
its entirety and shall be amended to read as follows:
GOVERNMENTAL CONSENTS, ETC. ImmunoGen will file a Form D with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, following the Initial Closing.
7. EFFECT OF AMENDMENT. The Agreement, as amended hereby, is
ratified and confirmed, and the undersigned agree and acknowledge that the
Agreement as so amended remains in full force and effect.
8. GOVERNING LAW. This Amendment and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts, without giving effect to the conflict
of law principles thereof.
9. COUNTERPARTS. This Amendment 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.
[THIS SPACE INTENTIONALLY LEFT BLANK]
3
4
IN WITNESS WHEREOF, the undersigned hereto have executed this
Amendment as of the date first above written.
IMMUNOGEN, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
4
5
BIOTECHNOLOGY VENTURE PARTNERS, L.P.
By: BVF Partners L.P., its general partner
By: BVF, Inc. its general partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx, President
BIOTECHNOLOGY VALUE FUND, L.P.
By: BVF Partners L.P., its general partner
By: BVF, Inc. its general partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx, President
BIOTECHNOLOGY VALUE FUND, LTD.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx, Director
INVESTMENT 10 L.L.C.
By: Grosvenor Multi-Strategy Fund, L.P.,
its Member
By: Grosvenor Capital Management, L.P.,
its general partner
By: Grosvenor Capital Management, Inc.,
its general partner
/s/ Xxxx Xxxxxxx
------------------------------------------
Xxxx Xxxxxxx, Vice President
5
6
EXHIBIT A
LETTER-AGREEMENT
by and between
PHARMACIA & UPJOHN AB, a company organized and existing under the laws of
Sweden, and having its address at Xxxxxxxxxxxxxxx 000, XX-00000 Xxxxxxxxx,
Xxxxxx (as hereinafter referred to as "P&U") and IMMUNOGEN INC., a company
organized and existing under the laws of the Commonwealth of Massachusetts,
having its address at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxx, XX 00000, XXX (as
hereinafter referred to as "ImmunoGen"). This Letter-Agreement represents a
binding agreement between P&U and ImmunoGen but will be subject to the final
execution of a license agreement on C242 (as defined below).
1. LICENSE AGREEMENT
The parties shall make every reasonable effort to execute a definitive
and final license agreement (the "License Agreement") by July 31, 1998,
or at such later date as mutually agreed by the parties, incorporating
the following terms and conditions, as well as such other provisions as
the parties may mutually agree. Irrespective of the outcome of the
negotiations and the reasons for terminating them, each party shall bear
its own expenses, including without limitation legal, accounting,
scientific and all other similarly related costs, whether or not the
License Agreement is actually consummated.
2. PREMISES - The premises are - and will be - an integral part of the
License Agreement.
a) the parties have in total entered into two Research Agreements (1992
and 1993) and one Ancillary Supply Agreement;
b) P&U is the owner of proprietary rights to technical information, trade
secrets and know-how related to the monoclonal antibody C242
(hereinafter called "C242")including US Patent 5,552,293 and the other
patents and patent applications listed on Attachment A (hereinafter
called "the P&U Patents");
c) ImmunoGen has been granted through a third party, the right to a
maytansinoid drug (hereinafter called "May") and is in possession of
proprietary technology to link such a drug to monoclonal antibodies,
and technical information, trade-secrets and know-how relating
thereto;
d) P&U is the owner of the patents and patent applications, jointly with
the Company Zeneca Limited, which concern conjugates between any
monoclonal antibody directed towards the C242 epitope and any toxin,
listed on Attachment B (hereinafter called the "P&U/Zeneca Patents");
7
-2-
e) ImmunoGen wishes to develop and market a conjugate between C242 and
May (hereinafter referred to as "C242-May") and P&U is willing to
grant a license under the terms and conditions hereinafter described
on C242 for this purpose.
3. GRANT OF RIGHTS
3.1. P&U hereby grants to ImmunoGen, who accepts, a license to manufacture,
use, sell and import C242 for the development and manufacturing of
C242-May for the treatment of human diseases. The license is a worldwide
exclusive license under P&U Patents and a worldwide non-exclusive license
under P&U/Zeneca Patents, subject to Zeneca's consent.
3.2. Any sublicense agreement will be subject to P&U and/or Zeneca's approval
in writing, such approval not to be unreasonably withheld by P&U and to
be given within thirty (30) days, and will impose obligations,
responsibilities and standards upon the sublicensee not less than those
imposed by the License Agreement. A copy of the License Agreement shall
be attached to any such sublicense. ImmunoGen shall be responsible
towards P&U for the fulfilment of the sublicensees' obligations.
3.3. P&U does not warrant that the development, manufacture, use and sale of
C242-May produced by using C242 shall not infringe any patent owned by
third parties.
4. REMUNERATION
4.1. INITIAL PAYMENTS
ImmunoGen shall pay P&U the following amounts:
- US$* within 90 days of execution of the License Agreement;
- US$* upon first initiation of Phase III Clinical Trials for C242-May;
- US$* upon first approval of a registration application based
on C242-May.
* Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Commission.
8
-3-
4.2. ROYALTIES
In consideration of the license, ImmunoGen shall also pay P&U the
following royalties for the longer of eight years from the date of first
commercial sale or the life of P&U Patents and P&U/Zeneca Patents:
a) a running royalty equal to * of the Net Sales Value of the C242-May
sold by ImmunoGen;
b) a royalty of * of any royalty received by ImmunoGen from its
sublicensees.
4.3. In the event that, in any country where ImmunoGen has the right to use
C242-May, a third party commences the sale of a conjugate drug binding
to the same epitope with the same CDR as C242 (a "Competitive Conjugate
Drug") and P&U;
(a) has no patent rights which could be enforced to prevent any such sale
or
(b) for a period of twelve (12) months from the date of notice of such
event from ImmunoGen, P&U has been unsuccessful in preventing any
such sale or in entering into a license agreement with such third
party,
ImmunoGen shall thereafter not be obliged to pay further royalties to
P&U on Net Sales in such country for so long as any such sales of a
Competitive Conjugate Drug continue.
4.4. The royalties shall be calculated for each calendar quarter. All
royalties payable by ImmunoGen under the License Agreement shall be paid
in US dollars within sixty (60) days of expiration of each preceding
calendar quarter.
5. INFORMATION
ImmunoGen will update P&U regularly on any news relating to material
developments and/or improvements made with respect to C242. Should P&U
come across any information on the safety of C242 which is relevant under
this Agreement, P&U shall promptly inform ImmunoGen.
* Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Commission.
9
-4-
6. SECRECY
6.1. Each party who receives information designated confidential in writing
(the "Receiving Party") will undertake to keep any and all information
supplied by the other party ("the Disclosing Party") as "Confidential
Information" and shall not use or disclose to any third party, other than
its employees, the Confidential Information without the prior written
consent of the Disclosing Party. Each party shall limit the access to the
Confidential Information to its employees who have a need to know such
Confidential Information. Each party will ensure that the employees to
whom the Confidential Information is disclosed covenant to keep the
Confidential Information strictly confidential and that such covenants on
the part of employees are strictly observed.
6.2. Notwithstanding the above, it will not be considered "Confidential
Information" the information which:
(a) was already in the possession of Receiving Party prior to its receipt
from the Disclosing Party;
(b) is, or becomes, part of the public knowledge through no fault, act or
omission of the Receiving Party, provided that Confidential
Information shall not be deemed to have entered the public domain by
reason of its having been filed with any regulatory authority;
(c) is required to be disclosed pursuant to law, provided, however, the
Receiving Party shall give reasonable notice to the Disclosing Party
of such requirement;
(d) is, or become available to the Receiving Party from a third party
which has no obligation of confidentiality to the Disclosing Party.
7. ASSIGNMENT
7.1. ImmunoGen may not wholly or partly assign or pledge its rights or
obligations under the License Agreement to any third party without the
prior written consent of P&U, which consent will not be unreasonably
withheld.
10
-5-
7.2. Notwithstanding the foregoing, P&U shall have the right to assign or
transfer the License Agreement, in whole or in part, to any successor or
affiliated organization or company.
8. INFRINGEMENT BY THIRD PARTIES
8.1. P&U and ImmunoGen shall give each other notice of any acts of
infringement by third parties involving intellectual property rights
relating to P&U Patents and P&U/Zeneca Patents anywhere of which P&U or
ImmunoGen has knowledge and they shall consult together to determine the
course of action, if any, to be taken in such circumstances. If, after
such consultation, it is decided that it's up to P&U to proceed,
ImmunoGen shall assist P&U in proceeding against an infringer provided
however that a party taking such action shall remunerate the other party
for its costs.
8.2. If the parties are unable to agree on any joint course of action to be
taken then P&U may in its own discretion decide whether or not to take
action against the infringer. If P&U decides not to take action against
the infringer then P&U may authorize ImmunoGen to take such action at its
own expense and to keep any damages which might be awarded; such
authorization not to be unreasonably withheld. Upon specific request of
ImmunoGen, P&U will reasonably assist ImmunoGen in such a proceedings at
ImmunoGen's expenses.
9. TERMINATION AND DUTIES UPON TERMINATION
9.1. Either party may by written notice to the other party, terminate this
Letter-Agreement with immediate effect in the event of bankruptcy,
receivership or insolvency of the other party, or the successor or
assignee of that party.
9.2. In the event that the control of ImmunoGen passes to any third party
entity which is considered by P&U as a major competitor in the oncology
field, P&U may, by written notice to ImmunoGen, terminate this
Letter-Agreement with immediate effect. The term "control" shall mean the
ownership of more than fifty (50) percent of the voting stock of
ImmunoGen.
11
-6-
9.3. If the parties do not conclude a License Agreement before the date stated
in Article 1 above, this Letter-Agreement shall become automatically null
and void and ImmunoGen hereby waives any present or future rights against
P&U under this Letter-Agreement and/or the termination thereof.
10. GOVERNINING LAW AND ARBITRATION
10.1. This Letter-Agreement shall be construed in accordance with and be
governed by the substantial laws of Sweden.
10.2. Where there is a failure to reach an agreement by negotiation on any
matter in dispute arising from or related to this Letter-Agreement then
the dispute shall be finally settled according to the Rules of
Conciliation and Arbitration of the International Chamber of Commerce by
three (3) arbitrators appointed in accordance with such Rules. The
arbitration will be held in Stockholm (Sweden). The award rendered shall
be final and binding upon the parties.
11. ENTIRE AGREEMENT
This Letter-Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all previous term
sheets understandings and representations whether oral or written. This
Letter-Agreement may not be modified or amended, in whole or in part,
except by a written agreement signed by both parties.
12
-7-
The parties acknowledge their acceptance of every and all the terms and
condition set forth hereinabove, by signing this Letter-Agreement below.
PHARMACIA & UPJOHN AP IMMUNOGEN INC.
by: /s/ Xxxxxxx Xxxx / H. Sievertsson BY: /s/ Xxxxxxx Xxxxxx
----------------------------------- -------------------------
Name: Xxxxxxx Xxxx / H. Sievertsson Name: Xxxxxxx Xxxxxx
Title: VP Legal Affairs Title: CEO
Date: June 23, 1998 Date: March 5, 1998
13
ATTACHMENT A
The P&U Patents
________________________________________________________________________________
COUNTRY APPLICATION APPLICATION PUBLICATION PATENT EXPIRY STATUS
No. DATE No. No. DATE
________________________________________________________________________________
AU 19425/92 1992-07-03 658198 2012 A
--------------------------------------------------------------------------------
BY 964 1992-07-03 A
--------------------------------------------------------------------------------
CA 2073124-9 1992-07-03 A
--------------------------------------------------------------------------------
EE P9400328 1994-11-16 03031 2014 A
--------------------------------------------------------------------------------
EP 92850166.7 1992-07-03 0521842 A
--------------------------------------------------------------------------------
FI 935970 1993-12-31 A
--------------------------------------------------------------------------------
HU P9400011 1994-01-03 A
--------------------------------------------------------------------------------
HU P/P00289 1995-06-20 211512 2012 A
--------------------------------------------------------------------------------
IE 922188 1992-07-03 A
--------------------------------------------------------------------------------
XX 000000 1992-07-02 P/102390 2012 A
--------------------------------------------------------------------------------
JP 175848/92 1992-07-03 276987/1993 A
--------------------------------------------------------------------------------
KR 93-704117 1992-07-02 A
--------------------------------------------------------------------------------
KZ 933270.1 1992-07-03 WO93/01303 A
--------------------------------------------------------------------------------
NO P934777 1993-12-22 A
--------------------------------------------------------------------------------
NZ 243435 1992-07-03 243435 2012 A
--------------------------------------------------------------------------------
RU 93058456 1992-07-03 I
--------------------------------------------------------------------------------
UA 93004422 1992-07-03 A
--------------------------------------------------------------------------------
US 906350 1992-07-02 I
--------------------------------------------------------------------------------
US 438123 1995-05-08 5552293 2013 A
________________________________________________________________________________
A = active
I = inactive
14
ATTACHMENT B
________________________________________________________________________________
COUNTRY APPLICATION APPLICATION PUBLICATION STATUS
NUMBER DATE NUMBER
________________________________________________________________________________
Australia 19430/92 1992-07-03 Active - Granted
--------------------------------------------------------------------------------
Canada 2073113-3 1992-07-03 Active
--------------------------------------------------------------------------------
Europe 92306149.3 1992-07-03 0528527 Active
--------------------------------------------------------------------------------
Finland 923085 1992-07-03 Active
--------------------------------------------------------------------------------
Ireland 922190 1992-07-03 Active
--------------------------------------------------------------------------------
Israel 102399 1992-07-03 Active
--------------------------------------------------------------------------------
Japan 177212/92 1992-07-03 Active
--------------------------------------------------------------------------------
South Korea 11913/92 1992-07-03 Active
--------------------------------------------------------------------------------
Mexico 923891 1992-07-02 Active
--------------------------------------------------------------------------------
Norway 922383 1992-06-17 Active
--------------------------------------------------------------------------------
Xxx Xxxxxxx 000000 1992-07-03 Active - Granted
--------------------------------------------------------------------------------
Taiwan 81107395 1992-09-19 Active
--------------------------------------------------------------------------------
X.X.X. 000000 1992-07-02 Active
--------------------------------------------------------------------------------
X.X.X. 000000 1995-03-20 Active
--------------------------------------------------------------------------------
South Africa 92/4973 1992-07-03 Active - Granted
________________________________________________________________________________
