1
EXHIBIT 10.1
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.
------------------------
DECEMBER 10, 1997
2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made this 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").
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 hereto;
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 hereto (each, a "Warrant" and collectively, the "Warrants") to
purchase shares of the Company's common stock, par value $.01 per share (the
"Warrant Shares");
WHEREAS, the Company and the Investor desire to set forth certain matters
to which they have agreed relating to the Warrants and the Preferred Shares;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties agree as follows:
ARTICLE I -- ISSUANCE AND TERMS OF IMMUNOGEN
--------------------------------------------
WARRANTS AND PREFERRED SHARES
-----------------------------
SECTION 1.1 AUTHORIZATION OF IMMUNOGEN WARRANTS AND PREFERRED SHARES.
Subject to the terms and conditions of this Agreement, the Company has
authorized the issuance of the Preferred Shares and the Warrants pursuant to
this Agreement.
SECTION 1.2 PURCHASE AND SALE OF PREFERRED SHARES. Subject to the terms
and conditions of this Agreement and in reliance upon the representations and
warranties of the Company contained herein, the Investor agrees to purchase from
the Company and the Company agrees to sell to the Investor, for a purchase price
of three million dollars ($3,000,000), an aggregate of 2,400 Preferred Shares on
the Closing Date (as hereinafter defined).
SECTION 1.3 PURCHASE AND SALE OF WARRANTS. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of the Company and the Investor contained herein, the Investor agrees
to acquire from the Company and the Company agrees to issue to the Investor the
Warrants on the Closing Date.
3
SECTION 1.4 PAYMENT. The Investor agrees to make payment of $1,000,000 and
$2,000,000 for the 800 and 1,600 Preferred Shares being delivered at the Initial
Closing (as hereinafter defined) and Final Closing (as hereinafter defined),
respectively, by certified check or wire transfer on the applicable Closing Date
to an account specified by the Company.
ARTICLE II -- CLOSING
---------------------
SECTION 2.1 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; and (ii) the final closing for $2,000,000 (the
"Final Closing") shall take place (the "Final Closing Date") within three (3)
business days after the Company delivers to BVF, Inc. (the "BVF Representative")
* that has been previously furnished to the BVF Representative. Unless stated
otherwise, as hereinafter used the terms Initial Closing and Final Closing shall
be referred to as the "Closing" and the Initial 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 and 1,600 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.
SECTION 2.2 VOTING RIGHTS. After the completion of the Final Closing and
as long as the Investor owns at least fifty percent (50%) of the aggregate
Preferred Shares and each such Investor owns at least 50% of the Warrants issued
to it at the Closing, the BVF Representative shall have the right within five
(5) calendar days (the "Approval Period") after its receipt from the Company of
a term sheet for a proposed transaction involving the licensing by the Company
to a third party (with a market capitalization of at least $500 million as set
forth on such party's most recent reported filing) of rights with respect to the
Company's * (a "* Collaboration") to approve the Company entering into such *
Collaboration, but only if such * Collaboration provides for earned royalties
payable to the Company (net of royalties payable by the Company to the licensors
of *) which are less than * of Net Sales (as defined below), such approval to
not be unreasonably withheld. If the BVF Representative gives written notice
within the Approval Period that it does not approve of such * Collaboration,
then the Company shall not enter into the proposed agreement with respect
thereto. "Net Sales" shall (i) mean the actual selling prices of * charged by
ImmunoGen or its sublicensee, in bona fide sales to third parties, as per
invoices covering such sales, less all trade and cash discounts, rebates,
allowances, returns, free goods and replacements actually granted, shipping
costs, insurance, and taxes and other governmental charges, except income taxes,
applicable to sales, then paid by ImmunoGen or its affiliates or (ii) be as
negotiated in good faith between the Company and such sublicensor and set forth
in such sublicense agreement, whichever is less.
-------------------
*Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Commission.
-2-
4
SECTION 2.3 REDEMPTION RIGHTS. In the event BVF Representative does not
approve the * Collaboration, the Company may, at its option, redeem all of the
outstanding Preferred Shares. The redemption price for each Preferred Share
redeemed pursuant to this Section 2.3 shall be the original stated value per
share of $1,250.00 (the "Redemption Price"). The Redemption Price set forth in
this Section 2.3 shall be subject to equitable adjustment whenever there shall
occur a stock split, stock dividend, combination, reorganization,
recapitalization, reclassification or other similar event involving a change in
the Preferred Shares.
Each holder of the Preferred Shares to be redeemed shall immediately
surrender the certificate(s) representing such shares to the Company and upon
such redemption each Investor shall immediately surrender 50% of the Warrants
originally issued to such Investor at the Closing. Regardless of the surrender
of the Warrants, upon the payment of the Redemption Price as described below
such Warrants subject to surrender and the Preferred Shares to be redeemed will
be void and of no value. The Company shall pay the Redemption Price for such
shares as set forth in this Section 2.3 to the order of the person whose name
appears on such certificate(s) via certified check or wire transfer. Each
surrendered certificate and Warrants shall be cancelled and retired.
SECTION 2.4 LEGEND. The certificates representing the Warrants and the
Preferred Shares shall be subject to a legend restricting transfer under the
Securities Act of 1933, as amended (the "Securities Act"), such legend to be
substantially as follows:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED BY ANY PERSON UNLESS (1) EITHER (A) A REGISTRATION STATEMENT
WITH RESPECT TO SUCH SECURITIES SHALL BE EFFECTIVE UNDER THE SECURITIES
ACT OF 1933 ("ACT"), OR (B) THE COMPANY SHALL HAVE REASONABLY REQUESTED
AND RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO IT THAT AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT IS THEN AVAILABLE, AND (2) THERE SHALL
HAVE BEEN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES LAWS."
ARTICLE III -- REPRESENTATIONS AND WARRANTIES OF THE COMPANY
------------------------------------------------------------
The Company hereby represents and warrants to the Investor that, as of the
date of this Agreement, the following are true and correct:
-------------------
*Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Commission.
-3-
5
SECTION 3.1 ORGANIZATION AND STANDING OF THE COMPANY. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the Commonwealth of Massachusetts. The Company has full corporate power and
authority to enter into, deliver, and perform its obligations and undertakings
under this Agreement. 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 3.2 CAPITALIZATION. The Company's entire authorized capital stock
consists of: 50,000,000 shares of ImmunoGen Common Stock, and 5,000,000 shares
of Preferred Stock, $.01 par value per share (the "ImmunoGen Preferred Stock").
All of the Company's outstanding shares of ImmunoGen Common Stock and ImmunoGen
Preferred Stock are listed on SCHEDULE 3.2 hereto and are validly issued, fully
paid, and non-assessable. The ImmunoGen Common Stock and the ImmunoGen Preferred
Stock have the preferences, voting powers, qualifications, and special or
relative rights or privileges set forth in the Company's Restated Articles of
Organization, as amended. The Preferred Shares are senior in liquidation
preference to all outstanding shares of the ImmunoGen Common Stock and all other
outstanding shares of the ImmunoGen Preferred Stock. As of November 12, 1997,
the Company had 1,151,222 shares of ImmunoGen Common Stock available for
issuance under the Company's Restated Stock Option Plan (the "Stock Plan").
Other than as indicated on SCHEDULE 3.2 hereto or 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 3.3 VALIDITY OF THIS AGREEMENT. The execution and delivery by the
Company of this Agreement and the performance by the Company of its obligations
under this Agreement, and the issue, sale and delivery of the Preferred Shares,
the Common Stock, the Warrants and 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, subject to
applicable bankruptcy, insolvency, reorganization and similar laws affecting
creditors' rights and remedies and subject to general principles of equity. The
execution and delivery by the Company of this Agreement and the performance by
the Company of its obligations under this Agreement and the issuance, sale and
delivery of the Preferred Shares, the Common Stock, the Warrants and 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 Restated Articles of Organization 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
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, instrument, covenant or other restriction or
-4-
6
arrangement to which the Company is a party or by which it or any of its
properties or assets is bound.
SECTION 3.4 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 3.4 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 offer, issue, sale or delivery of the Preferred Shares, the
Common Stock, the Warrants and the Warrant Shares pursuant to the Agreement or
the consummation of any other transactions contemplated thereby.
SECTION 3.5 VALID ISSUANCE OF PREFERRED SHARES, COMMON STOCK, WARRANTS AND
WARRANT SHARES. When issued and delivered against payment therefor in accordance
with the terms and conditions of this Agreement and EXHIBIT B hereto, the
Preferred Shares, the Common Stock, the Warrants and the Warrant 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 to
the voting of the Common Stock or the Warrant Shares, except as set forth in
this Agreement or EXHIBIT B hereto.
SECTION 3.6 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 June 30, 1997 to the date of this Agreement
(the "SEC Reports") have been furnished to the Investor. The audited financial
statements of the Company contained in the Company's Annual Report on Form 10-K
for the year ended June 30, 1997, including the notes relating thereto, disclose
all material liabilities of the Company as of the date thereof, except as set
forth on SCHEDULE 3.6(a) hereto. 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 June 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 and except for the sale of the Company's Warrants to BioChem Pharma
(International) Inc. in July 1997.
SECTION 3.7 NO VIOLATION. Neither the execution and delivery by the
Company of this Agreement, nor the consummation of the transactions contemplated
hereby 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 Restated Articles of Organization or By-Laws.
-5-
7
SECTION 3.8 *
SECTION 3.9 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.
SECTION 3.10 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 preferred shares pursuant
to this Agreement, if any, have been or will be completed by the Company.
ARTICLE IV -- REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
------------------------------------------------------------
The Investor hereby acknowledges, represents, warrants and agrees as
follows:
SECTION 4.1 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 Warrants and the
Preferred Shares 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 Warrants and
the Preferred Shares 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 4.2 INVESTMENT REPRESENTATIONS. The Investor 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 have provided answers to all of its questions concerning the
Company and the Warrants and the Preferred Shares. In evaluating the suitability
of the acquisition of the Warrants and the Preferred Shares hereunder, the
Investor has not relied upon any representations or other information (whether
oral or written) other than as set forth in the SEC Reports or in this
Agreement.
-------------------
*Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Commission.
-6-
8
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 Warrants and the
Preferred Shares has not been registered under the Securities Act or the
securities laws of any state or other jurisdiction and that such Warrants and
the Preferred Shares must be held indefinitely unless an exemption from
registration is available. The Investor understands that the offering and sale
of the Warrants and the Preferred 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 Warrants and the Preferred Shares in violation of
the provisions of any applicable Federal or state securities statute.
The Investor is acquiring the Warrants and the Preferred Shares 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
Warrants and the Preferred Shares. The Investor's financial condition and
investments are such that it is in a financial position to hold the Warrants and
the Preferred Shares for an indefinite period of time and to bear the economic
risk of, and withstand a complete loss of, such Warrants and the Preferred
Shares. In addition, by virtue of its expertise, the advice available to it, and
its previous investment experience, the Investor has sufficient 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 V -- CONDITIONS TO INVESTOR'S OBLIGATIONS
-------------------------------------------------
SECTION 5.1 CONDITIONS TO CLOSING ON CLOSING DATE. The obligation of the
Investor to purchase and pay for the Warrants and the Preferred Shares on each
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 each
Closing Date with the same force and effect as if they had been made on and as
of each 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
each Closing Date shall have been performed or complied with.
(c) OPINION OF COMPANY'S COUNSEL. The Investor shall have received an
opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the
Company, substantially in the form of EXHIBIT C hereto.
-7-
9
(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 Investor and its counsel, each of whom
shall have received all such originals or certified or 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 Warrants and the Preferred Shares (except as otherwise
provided in this Agreement).
(g) OFFICER'S CERTIFICATE DELIVERED BY COMPANY. The Company shall have
delivered to the Investor 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
5.1 on or before each Closing Date has been duly satisfied.
(h) CERTIFICATE OF VOTE. A Certificate of Vote of Directors Establishing a
Series of a Class of Stock having the terms set forth on EXHIBIT A hereto (the
"Certificate of Vote") shall have been filed with the Secretary of State of the
Commonwealth of Massachusetts upon the Initial Closing.
(i) REGISTRATION AGREEMENT. The Company and the Investor shall have
executed and delivered a Registration Agreement in the form of EXHIBIT D hereto.
(j) NO MATERIAL ADVERSE CHANGE. There has been no material adverse change
in the financial condition of the Company since the date of signing of the
Agreement.
(k) 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 VI -- CONDITIONS TO THE COMPANY'S OBLIGATIONS
-----------------------------------------------------
SECTION 6.1 CONDITIONS TO CLOSING. The obligation of the Company to issue
the Warrants and the Preferred Shares, respectively, to the Investor on each
Closing Date is subject to the following:
-8-
10
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Investor made herein shall be true, correct and complete in all respects on
and as of each Closing Date with the same force and effect as if they had been
made on and as of each 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 Warrants and the Preferred Shares (except as otherwise
provided in this Agreement).
ARTICLE VII -- COVENANTS OF THE COMPANY
---------------------------------------
SECTION 7.1 FURNISHING OF INFORMATION. As long as the Investor owns
Preferred Shares, Common Stock, the Warrants or Warrant Shares, 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 the 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 the 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 7.2 INFORMATION WITH RESPECT TO THE SECURITIES. As long as the
Investor owns Preferred Shares, Common Stock, Warrants, or Warrant Shares, the
Company covenants to provide such information as is reasonably requested by the
Investor related to the terms of such securities.
SECTION 7.3 ADDITIONAL EQUITY CAPITAL; RIGHT TO PARTICIPATE. (a) The
Company agrees that, during the period beginning on the date hereof and ending
on the earlier of (i) December 10, 2000 and (ii) the conversion into Common
Stock, or sale or transfer by the Investor, of at least fifty percent (50%) in
the aggregate of the Series E Preferred Stock issued at the Closing, if the
Company closes any transaction with any party in which the Company issues New
Securities, the Investor shall have the right to purchase from the Company
within five business days following the later of (i) notice from the Company of
the closing of the transaction and (ii) the closing of the transaction such
number of securities with the same terms and conditions as the New Securities
(except as described below) as is necessary to maintain the Investor's
percentage ownership in the Company at the level immediately prior to the
issuance of such New Securities; provided that in the event that issuance of
securities similar to such New Securities to the Investor in the amount
contemplated above would result in an issuance in violation of Rule 4460(i) of
the NASDAQ Stock Market (or any successor or replacement provision thereof) then
the purchase price, conversion price or exercise price of the securities issued
to the Investor will be the market price of such securities on the date of
issue. The Investor's percentage ownership for purposes of the rights set forth
in this section is the ratio of
-9-
11
the number of shares of common stock owned by the Investor prior to the issuance
of the New Securities to the total number of shares of common stock of the
Company prior to the issuance of the New Securities, determined on a fully
converted, fully diluted basis.
(b) "New Securities" shall mean any capital stock (including common stock
and/or preferred stock) of the Company whether now authorized or not, and
rights, options or warrants to purchase such capital stock, and securities of
any type whatsoever that are, or may become, convertible into capital stock;
provided that the term "New Securities" does not include; (i) securities
purchased under this Agreement; (ii) securities issued upon conversion of the
Series E Preferred Stock; (iii) securities issued pursuant to the acquisition of
another business entity or business segment of any such entity by the Company by
merger, purchase of substantially all the assets or other reorganization; (iv)
any borrowings, direct or indirect, from financial institutions or other persons
by the Company, whether or not presently authorized, including any type of loan
or payment evidenced by any type of debt instrument; (v) securities issued to
employees, consultants, officers or directors of the Company pursuant to any
stock option, stock purchase or stock bonus plan, agreement or arrangement
approved by the Board of Directors; (vi) securities issued to vendors or
customers or to other persons in similar commercial situations with the Company
if such issuance is approved by the Board of Directors; (vii) securities issued
in connection with obtaining lease financing, whether issued to a lessor,
guarantor or other person; (viii) securities issued in a public offering
pursuant to a registration under the Securities Act; (ix) securities issued in
connection with any stock split, stock dividend or recapitalization of the
Company; and (x) any right, option or warrant to acquire any security
convertible into the securities excluded from the definition of New Securities
pursuant to subsections (i) through (ix) above; provided further however that
(y) securities described in clause (v) above shall constitute New Securities if
(i) they are issued pursuant to an option, plan, agreement or arrangement not
granted or in effect on the date of this Agreement and (ii) they constitute,
together with all other securities of the Company outstanding described in
clause (v), more than 20% of the Company's common stock, determined on a fully
converted, fully diluted basis and (z) if New Securities are issued in light of
clause (y) hereof, the Investor's rights to participate shall consist of the
right to exercise such options, on the terms set forth in the options, on the
date of grant of the options.
ARTICLE VIII -- SURVIVAL AND INDEMNIFICATION
--------------------------------------------
8.1 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.
8.2 INDEMNIFICATION.
----------------
(a) The Company shall indemnify the 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;
-10-
12
(b) 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; 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 8.2(c) shall not in any way affect the
indemnifying party's indemnification obligation hereunder except and only to the
extent that 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
wish, 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 indemnifying party and the indemnified party
and representation 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 any loss or liability by reason of such
settlement or judgment.
ARTICLE IX -- MISCELLANEOUS
---------------------------
SECTION 9.1 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 designate 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 the Investor: BVF Representative
c/o Biotechnology Value Fund, L.P.
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Mr. Xxxx Xxxxxxx
Fax: 000-000-0000
-11-
13
With a copy to: Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx , XX 00000
Attn: Xxxxx Xxxx, Esq.
Fax: 000-000-0000
If to the Company: ImmunoGen, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
With a copy to Mintz Xxxxx, Cohn, Ferris,
Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (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 made by 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 9.2 ENTIRE AGREEMENT. This Agreement, including 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.
SECTION 9.3 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 Investor. No such waiver or
consent shall be deemed to be or shall constitute a waiver or consent with
respect to any other terms or provisions of this Agreement, whether or not
similar. Each such waiver or consent shall be effective only in the specific
instance and for the purpose for which it was given, and shall not constitute a
continuing waiver or consent.
SECTION 9.4 ASSIGNMENT. The rights and obligations under this Agreement
may not be assigned by either party hereto without the prior written consent of
the other party. Neither
-12-
14
this Agreement nor 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 the other party, and any attempted assignment, delegation, sale,
transfer, or other disposition, by operation of law or otherwise, of this
Agreement or of any rights or obligations hereunder contrary to this Section 9.4
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 9.5 BENEFIT. All statements, representations, warranties,
covenants and agreements in this Agreement shall be binding on the parties
hereto and shall inure to the benefit of the respective 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 9.6 GOVERNING LAW. This Agreement and the rights and obligations
of the parties 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 9.7 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 be interpreted as if such provision were so excluded and
shall nevertheless remain in full force and effect.
SECTION 9.8 HEADINGS AND CAPTIONS. The headings and captions of the
various subdivisions of this Agreement are for convenience of reference only and
shall in no way modify, or affect the meaning or construction of any of the
terms or provisions hereof.
SECTION 9.9 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 any 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 9.10 EXPENSES. Except as provided in Section 8.2, each of the
parties shall pay its own fees and expenses (including the fees of any
attorneys, accountants, appraisers or
-13-
15
others engaged by such party) in connection with this Agreement and the
transactions contemplated hereby whether or not the transactions contemplated
hereby are consummated.
SECTION 9.11 BROKERS. Each of the parties hereto represents and warrants
to the other that no broker, finder or 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 or 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 9.12 CONFIDENTIALITY. The 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. The 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 9.13 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 9.14 FURTHER ASSURANCES. 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 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).
[Remainder of page intentionally left blank]
-14-
16
IN WITNESS WHEREOF, the undersigned have executed this Stock Purchase
Agreement this 10th day of December, 1997.
IMMUNOGEN, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
-15-
17
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
-16-
