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EXHIBIT 10.34
IMMUNOGEN, INC. HAS OMITTED FROM THIS EXHIBIT 10.34 PORTIONS OF THE AGREEMENT
FOR WHICH IMMUNOGEN, INC. HAS REQUESTED CONFIDENTIAL TREATMENT FROM THE
SECURITIES AND EXCHANGE COMMISSION. THE PORTIONS OF THE AGREEMENT FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED ARE MARKED WITH AN ASTERISK AND SUCH
CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
STOCK PURCHASE AGREEMENT
BY AND AMONG
APOPTOSIS TECHNOLOGY, INC.,
IMMUNOGEN, INC.,
AND
BIOCHEM PHARMA (INTERNATIONAL) INC.
------------------------
JULY 31, 1997
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made this 31st day of
July, 1997 by and among ImmunoGen, Inc., a Massachusetts corporation (the
"Company"), Apoptosis Technology, Inc., a Massachusetts corporation ("ATI"), and
BioChem Pharma (International) Inc., a Canadian
corporation ("BioChem").
WHEREAS, ATI is a subsidiary of the Company;
WHEREAS, ATI and BioChem Therapeutic Inc. ("BTI") are entering into
a Research Collaboration Agreement (the "Research Agreement") and ATI and
BioChem Pharma, Inc. ("BPI"), Tanaud Holdings (Barbados) Ltd. ("Tanaud
Barbados") and Tanaud L.L.C. are entering into a License Agreement (the
"License Agreement") of even date herewith (BioChem, BTI, BPI, Tanaud
Barbados and Tanaud L.L.C. being hereinafter referred to individually as a
"BioChem Party," and collectively as the "BioChem Parties");
WHEREAS, ATI and the Company desire that the Company issue and sell to
BioChem and BioChem desires to acquire common stock purchase warrants
substantially in the form of EXHIBIT A hereto (each, an "ImmunoGen Warrant" and
collectively, the "ImmunoGen Warrants") to purchase shares of the Company's
common stock, par value $.01 per share (the "ImmunoGen Common Stock");
WHEREAS, ATI and the Company desire that ATI issue and sell to BioChem and
BioChem desires to acquire shares (the "Preferred Shares") of ATI's Series B
convertible preferred stock, par value $.01 per share, convertible into shares
of ATI's Common Stock, par value $.00002 per share ("ATI Common Stock"), and
having the designations, powers, preferences, and other terms set forth on
EXHIBIT B hereto;
WHEREAS, the proceeds from the issuance and sale of the Preferred Shares
and the ImmunoGen Warrant will be used to finance the Research Program (as
defined in the Research Agreement) to be undertaken by ATI pursuant to the terms
of the Research Agreement; and
WHEREAS, ATI, the Company and BioChem desire to set forth certain matters
to which they have agreed relating to the ImmunoGen Warrant and the Preferred
Shares;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties agree as follows:
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ARTICLE I -- ISSUANCE AND TERMS OF IMMUNOGEN
WARRANT AND PREFERRED SHARES
SECTION 1.1 AUTHORIZATION OF IMMUNOGEN WARRANT AND PREFERRED Shares.
Subject to the terms and conditions of this Agreement, the Company has
authorized the issuance of the ImmunoGen Warrant and ATI has authorized the
issuance of the Preferred Shares pursuant to this Agreement.
SECTION 1.2 PURCHASE AND SALE OF IMMUNOGEN WARRANT. Subject to the terms
and conditions of this Agreement and in reliance upon the representations and
warranties of the Company and BioChem contained herein, BioChem agrees to
acquire from the Company and the Company agrees to issue to BioChem an ImmunoGen
Warrant on the Initial Closing Date (as hereinafter defined) and on each
Subsequent Closing Date (as hereinafter defined), in consideration for BioChem's
investment in ATI.
SECTION 1.3 PURCHASE AND SALE OF PREFERRED SHARES. Subject to the terms
and conditions of this Agreement and in reliance upon the representations and
warranties of ATI and BioChem contained herein, BioChem agrees to purchase from
ATI and ATI agrees to sell to BioChem, (a) for a purchase price of one million
eight hundred fifty-two thousand dollars ($1,852,000), 1,852 Preferred Shares on
the Initial Closing Date, and, if the conditions contained in Section 6.2 are
satisfied, (b) for a purchase price of eight hundred forty-three thousand
dollars ($843,000), an additional 843 Preferred Shares on each Subsequent
Closing Date (as hereinafter defined), such that BioChem shall have acquired an
aggregate of 11,125 Preferred Shares for an aggregate purchase price of eleven
million one hundred twenty-five thousand dollars ($11,125,000) pursuant to this
Section 1.3.
SECTION 1.4 PAYMENT. BioChem agrees to make payment of the full purchase
price of Preferred Shares being delivered at the Initial Closing or the
Subsequent Closing, as the case may be, by certified check or wire transfer on
the Initial Closing Date or Subsequent Closing Date, as applicable.
SECTION 1.5 RESALE LIMITATIONS. BioChem hereby agrees not to sell, pledge,
assign or otherwise transfer the ImmunoGen Warrant or the Preferred Shares
during the Initial Research Term (as defined in the Research Agreement);
provided that BioChem shall have the right to transfer the ImmunoGen Warrants
and Preferred Shares to its Affiliates (as defined in the Research Agreement)
during the Initial Research Term so long as those Affiliates agree in writing to
be bound by the restrictions on the sale, pledge, assignment and transfer of the
ImmunoGen Warrant and the Preferred Shares set forth in this Section 1.5.
SECTION 1.6 ADDITIONAL CLOSINGS. The parties acknowledge and agree that
the Research Agreement provides for successive renewal terms after the Initial
Research Term (as defined in the Research Agreement). In the event that BioChem
exercises its option to extend the Research Program (as defined in the Research
Agreement), the parties agree that BioChem will provide additional equity
financing for such extension of the Research Program at a financing
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level equal to at least three million three hundred seventy-five thousand
dollars ($3,375,000) per year upon the same terms and conditions as the
investment made pursuant to this Agreement. In the event that, pursuant to the
terms of the Research Agreement, the number of full-time equivalent employees
("FTEs") of ATI assigned to the Research Program at any time is more than [*],
BioChem will provide additional equity financing to ATI of an additional [*] per
FTE above [*] per annum upon the same terms and conditions as the financing made
pursuant to this Agreement.
ARTICLE II -- CLOSING
SECTION 2.1 INITIAL CLOSING. Subject to the satisfaction of Articles VI
and VII hereof, the initial closing hereunder (the "Initial Closing") shall take
place at a place and time (the "Initial Closing Date") mutually agreed by ATI,
the Company and BioChem, but in any event no later than July 31, 1997. At the
Initial Closing, (a) ATI shall deliver to BioChem one or more stock certificates
registered in the name of "BioChem Pharma (International) Inc." or in such name
or names as may be designated by BioChem at least five (5) calendar days in
advance of the Initial Closing Date, for 1,852 Preferred Shares, against payment
to ATI of the purchase price therefor pursuant to Section 1.4, and (b) the
Company shall deliver to BioChem an ImmunoGen Warrant registered in the name of
"BioChem Pharma (International) Inc." or in such name or names as may be
designated by BioChem at least five (5) calendar days in advance of the Initial
Closing Date to purchase the number of shares indicated on EXHIBIT A hereof.
SECTION 2.2 SUBSEQUENT CLOSINGS If the conditions contained in Articles VI
and VII hereof are satisfied, each subsequent closing hereunder (each, a
"Subsequent Closing") shall take place at a place and time (the "Subsequent
Closing Date") mutually agreed by ATI, the Company and BioChem, in each case
within five (5) calendar days prior to March 31, June 30, September 30 and
December 31 of each year during the Initial Research Term (unless postponed
pursuant to Section 6.2(i)) through and including March 31, 2000. At each
Subsequent Closing, (a) ATI shall deliver to BioChem one or more stock
certificates registered in the name of "BioChem Pharma (International) Inc." or
in such name or names as may be designated by BioChem at least five (5) calendar
days in advance of the Subsequent Closing Date, for 843 Preferred Shares against
payment to ATI of the purchase price therefor pursuant to Section 1.4, and (b)
the Company shall deliver to BioChem an ImmunoGen Warrant registered in the name
of "BioChem Pharma (International) Inc." or such name or names as may be
designated by BioChem at least five (5) calendar days in advance of the
Subsequent Closing Date to purchase the number of shares indicated on EXHIBIT A
hereto. Upon each Subsequent Closing Date which is not a June 30 closing date,
BioChem shall reimburse ATI and ImmunoGen for their closing costs (including
attorneys' fees and expenses) incurred in connection with such Subsequent
Closing, together with a sum which represents the amount of income ATI would
have received on the proceeds paid to ATI on the Subsequent Closing Date if it
had been invested since the previous June 30 at an annual rate of five percent
(5%); provided that BioChem shall not be obligated to pay ATI more than $50,000
on account of such costs and interest in any twelve month period commencing on
June 30 of each year.
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SECTION 2.3 LEGEND. The certificates representing the ImmunoGen Warrant
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 ATI
ATI hereby represents and warrants to BioChem that, as of the date of this
Agreement, the following are true and correct:
SECTION 3.1 ORGANIZATION AND STANDING OF ATI. ATI is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts. ATI has full corporate power and authority to
enter into, deliver, and perform its obligations and undertakings under this
Agreement. ATI has no subsidiaries. ATI 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 ATI. ATI has full corporate power
and authority to carry on the businesses in which it is engaged and to own and
use the properties owned and used by it.
SECTION 3.2 CAPITALIZATION. ATI's entire authorized capital stock consists
of: 35,000,000 shares of ATI Common Stock, and 18,125 shares of preferred stock,
$.01 par value per share ("ATI Preferred Stock"), of which 7,000 shares have
been designated Class A Convertible Preferred Stock (the "Class A Stock") and of
which 11,125 shares will be designated Series B Convertible Preferred Stock
pursuant to the Certificate of Vote (as defined in Section 6.1(j) hereof). All
of ATI's outstanding shares of ATI Common Stock and ATI Preferred Stock are
listed on SCHEDULE 3.2 hereto. The ATI Common Stock and the Class A Stock have
the preferences, voting powers, qualifications, and special or relative rights
or privileges set forth in ATI's Restated Articles of Organization. Other than
as indicated on SCHEDULE 3.2 hereto, ATI 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 ATI has not given
any person any right to acquire from ATI or sell to ATI any shares of its
capital stock. Except as set forth on SCHEDULE 3.2, there
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are no voting trust, proxies, or other agreements or understandings with respect
to the voting of the capital stock of ATI.
SECTION 3.3 VALIDITY OF THIS AGREEMENT. The execution and delivery by ATI
of this Agreement and the performance by ATI of its obligations under this
Agreement, and the issue and sale of the Preferred Shares and ATI Common Shares,
have been duly authorized and approved by all necessary corporate action. This
Agreement has been duly executed and delivered by ATI and constitutes a valid
and binding obligation of ATI, enforceable in accordance with its terms. The
execution and delivery by ATI of this Agreement, the performance by ATI of its
obligations under this Agreement and the issuance and sale of the Preferred
Shares and the ATI Common 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 ATI, 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, contract, license, lease, instrument, covenant or
other restriction or arrangement to which ATI 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 ATI prior to the
Initial Closing or Subsequent Closing, as applicable, and which are set forth in
SCHEDULE 3.4 hereto, 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 or ATI Common Shares pursuant to the Agreement or the
consummation of any other transactions contemplated thereby.
SECTION 3.5 VALID ISSUANCE OF PREFERRED SHARES AND ATI COMMON 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 and the
shares of ATI Common Stock issuable upon conversion of the Preferred Shares (the
"ATI Common 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 ATI Common Shares, except as
set forth in this Agreement.
SECTION 3.6 ABSENCE OF MATERIAL ADVERSE CHANGE. Since March 31, 1997,
there has not been any material adverse change in the business, financial
condition, operations, results of operation, assets, employee relations,
customer or supplier relations, or future prospects of ATI, except continuing
operating losses, depletion of cash resources and changes in the ordinary course
of business and except for the sale of 1,000 shares of the Company's Series D
Convertible Preferred Stock in June, 1997.
SECTION 3.7 NO VIOLATION. Neither the execution and delivery by ATI of
this Agreement, nor the consummation of the transactions contemplated hereby,
will violate any
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constitution, statute, rule, injunction, judgment, order, decree, ruling,
charge or other restriction of any government, governmental agency, or court to
which ATI is subject, or any provision of its Restated Articles of Organization
or By-Laws.
ARTICLE IV -- REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to BioChem that, as of the date
of this Agreement, the following are true and correct:
SECTION 4.1 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 4.2 CAPITALIZATION. The Company's entire authorized capital
stock consists of: 30,000,000 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 4.2 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. As of March 31, 1997, the Company had
899,234 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 4.2 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 4.3 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 ImmunoGen Warrant
and the Warrant Shares have been duly authorized and approved by all necessary
corporate action, except for stockholder approval of an increase in the
authorized number of shares of ImmunoGen Common Stock as contemplated by Section
8.1 below. 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
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terms. 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 ImmunoGen Warrant 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 arrangement to which the
Company is a party or by which it or any of its properties or assets is bound.
SECTION 4.4 GOVERNMENTAL CONSENT, ETC. Except for filings, consents,
permits, approvals and authorizations which will be obtained by the Company
prior to the Initial Closing or the Subsequent Closing, as applicable, and which
are set forth in SCHEDULE 4.4 and approval by the Company's stockholders of an
increase in the Company's authorized Common Stock, no consent, approval,
authorization or other order of, action by, filing with, or notification to of
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 ImmunoGen Warrant and the Warrant Shares
pursuant to the Agreement or the consummation of any other transactions
contemplated thereby.
SECTION 4.5 VALID ISSUANCE OF IMMUNOGEN WARRANT. When issued and delivered
against payment therefor in accordance with the terms and conditions of this
Agreement and EXHIBIT A hereto, the ImmunoGen Warrant and the shares of
ImmunoGen Common Stock issuable upon exercise of the ImmunoGen Warrant in
accordance with the terms of the ImmunoGen Warrant (the "Warrant Shares") shall
be (i) duly authorized and validly issued, fully paid and non-assessable, except
that, as of the date of the Initial Closing, the Company does not have
sufficient authorized ImmunoGen Common Stock reserved for issuance of or to
issue the Warrant Shares, 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 Warrant Shares, except as set
forth in this Agreement or EXHIBIT A hereto.
SECTION 4.6 FINANCIAL STATEMENTS. The ImmunoGen 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, 1996 to the date of this Agreement
(the "SEC Reports") have been furnished to BioChem. The audited financial
statements of the Company contained in the Company's Annual Report on Form 10-K
for the year ended June 30, 1996, as amended, and the interim financial
statements of the Company for the fiscal quarters ended September 30, 1996,
December 31, 1996 and March 31, 1997, each as amended, contained in the
Company's Quarterly Report on Form 10-Q for the quarters then ended, in each
case as amended to date, including the notes relating thereto, disclose all
material liabilities of the Company as of the respective dates thereof, except
as set forth on SCHEDULE 4.6(A) hereto. Since March 31, 1997, there has not been
any material adverse change in the business, financial condition, operations,
results of operations, assets, employee relations,
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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 1,000 shares of the
Company's Series D Convertible Preferred Stock in June, 1997. The Company's
total assets and total liabilities and stockholders' equity reflected in the
Company's audited consolidated balance sheet as of June 30, 1997, and the
Company's net loss reflected in the Company's audited consolidated statement of
operations for the fiscal year ended June 30, 1997 will not be materially less
favorable than the corresponding entries on the draft financial statements (the
"Draft Financial Statements") attached hereto as SCHEDULE 4.6(b). For purposes
of the preceding sentence, (a) any increase in long-term liabilities and (b) a
decrease of five percent (5%) or more in net assets, in each case from the Draft
Financial Statements to the June 30, 1997 audited financial statements, shall be
deemed to be "materially less favorable."
SECTION 4.7 INDEBTEDNESS TO THE COMPANY. Other than the ImmunoGen Note (as
defined in Section 6.1(k)), there is no other indebtedness owed by ATI to the
Company as of the date of this Agreement (assuming without representing and
warranting that the amount owed for July 1997 is the same as the amount owed for
June 1997).
SECTION 4.8 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 to which the Company is subject, or any provision
of its Restated Articles of Organization or By-Laws.
ARTICLE V -- REPRESENTATIONS AND WARRANTIES OF BIOCHEM
BioChem hereby acknowledges, represents, warrants and agrees as follows:
SECTION 5.1 AUTHORITY OF BIOCHEM; VALIDITY OF THIS AGREEMENT. BioChem has
all requisite power and authority to enter into this Agreement and perform its
obligations hereunder. The execution, delivery and performance by BioChem of
this Agreement, and the purchase of the ImmunoGen Warrant 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 BioChem, 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 ImmunoGen Warrant 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 BioChem is a party or by which it or any
of its properties or assets is bound.
SECTION 5.2 INVESTMENT REPRESENTATIONS. BioChem hereby acknowledges,
represents, warrants and agrees as follows:
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BioChem has reviewed the SEC Reports and the financial statements
contained therein. BioChem acknowledges that ATI and the Company have made
available to BioChem all documents and information that it has requested
relating to ATI and the Company and have provided answers to all of its
questions concerning ATI and the Company and the ImmunoGen Warrant and the
Preferred Shares. In evaluating the suitability of the acquisition of the
ImmunoGen Warrant and the Preferred Shares hereunder, BioChem has not relied
upon any representations or other information (whether oral or written) other
than as set forth in the SEC Reports or as contained herein or in any writing
provided by ATI or the Company to BioChem.
BioChem is an "accredited investor" as defined in Rule 501(a)(3) of the
Securities Act.
BioChem understands that the offering of the ImmunoGen Warrant 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 ImmunoGen
Warrant and the Preferred Shares must be held indefinitely unless an exemption
from registration is available. BioChem understands that the offering and sale
of the ImmunoGen Warrant and the Preferred Shares is intended to be exempt from
registration under the Securities Act, by virtue of 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 BioChem contained in this Agreement and the Company may rely on such
representations, warranties and agreements in connection therewith. In addition
to the restrictions set forth in Section 1.5 of this Agreement, BioChem will not
transfer the ImmunoGen Warrant and the Preferred Shares in violation of the
provisions of any applicable Federal or state securities statute.
BioChem is acquiring the ImmunoGen Warrant 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
ImmunoGen Warrant and the Preferred Shares. BioChem's financial condition and
investments are such that it is in a financial position to hold the ImmunoGen
Warrant and the Preferred Shares for an indefinite period of time and to bear
the economic risk of, and withstand a complete loss of, such ImmunoGen Warrant
and the Preferred Shares. In addition, by virtue of its expertise, the advice
available to it, and its previous investment experience, BioChem 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 VI -- CONDITIONS TO BIOCHEM'S OBLIGATIONS
SECTION 6.1 CONDITIONS TO INITIAL CLOSING ON INITIAL CLOSING DATE. The
obligation of BioChem to purchase and pay for the ImmunoGen Warrant and the
Preferred Shares on the Initial Closing Date is subject to the following:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
ATI and the Company made herein shall be true, correct and complete on and as of
the Initial Closing Date with the same force and effect as if they had been made
on and as of the Initial Closing Date.
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(b) PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by ATI and the Company on or
prior to the Initial Closing Date shall have been performed or complied with.
(c) OPINION OF COMPANY'S COUNSEL. BioChem shall have received an opinion
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for ATI and the
Company, substantially in the form of EXHIBIT C hereto.
(d) CORPORATE PROCEEDINGS; CONSENTS, ETC. All corporate and other
proceedings to be taken and all waivers and consents to be obtained in
connection with the transactions contemplated by this Agreement shall have been
taken or obtained and all documents incident thereto shall be reasonably
satisfactory in form and substance to BioChem 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,
the Research Agreement or the License 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 ImmunoGen Warrant and the Preferred Shares (except as
otherwise provided in this Agreement).
(g) OFFICER'S CERTIFICATE DELIVERED BY ATI. ATI shall have delivered to
BioChem a certificate, dated the Initial Closing Date and signed by the Chief
Executive Officer or the President of ATI, to the effect that each of the
conditions to be satisfied by ATI pursuant to this Section 6.1 on or before the
Initial Closing Date has been duly satisfied.
(h) OFFICER'S CERTIFICATE DELIVERED BY COMPANY. The Company shall have
delivered to BioChem a certificate, dated the Initial 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
6.1 on or before the Initial Closing Date has been duly satisfied.
(i) RESEARCH AGREEMENT AND LICENSE AGREEMENT. The Research Agreement and
the License Agreement shall have been executed and delivered by the parties
thereto.
(j) CERTIFICATE OF VOTE. A Certificate of Vote of Directors Establishing a
Series of a Class of Stock having the terms set forth on EXHIBIT B hereto (the
"Certificate of Vote") shall have been filed with the Secretary of State of the
Commonwealth of Massachusetts.
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(k) AMOUNTS OWED TO THE COMPANY CONVERTED TO ATI COMMON STOCK. An
estimated $14,435,178 owed by ATI to the Company (the "ImmunoGen Note") as of
the date of this Agreement (based on the actual amount owed through June
30,1997, and assuming that the amount owed for July 1997 is the same as the
amount owed for June 1977) shall have been converted into 22,207,966 shares of
ATI Common Stock.
(l) SECURITY INTEREST. ATI shall have granted BioChem a security interest
in the Collateral (as hereinafter defined) and shall have executed financing
statements for filing with appropriate government entities.
(m) ASSIGNMENT AGREEMENT AND SERVICES AGREEMENT. ATI and ImmunoGen shall
have entered into an Assignment Agreement and a Services Agreement in the form
of EXHIBIT D and EXHIBIT E hereto, respectively.
(n) ATI EMPLOYEES. The persons listed on Exhibit 2.2.2 to the Research
Agreement shall have become employees of ATI and shall have entered into
Proprietary Information and Inventions Agreements with ATI in the form of
EXHIBIT F hereto.
(o) REGISTRATION AGREEMENTS. ATI and BioChem, and ImmunoGen and BioChem,
shall have executed and delivered Registration Agreements in the form of EXHIBIT
G hereto.
SECTION 6.2 CONDITIONS TO SUBSEQUENT CLOSINGS. BioChem shall have no
obligation to purchase and pay for the Preferred Shares and the ImmunoGen
Warrant on each Subsequent Closing Date unless:
(a) INITIAL CLOSING OCCURRED. The Initial Closing shall have occurred.
(b) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
ATI and the Company made herein shall be true, correct and complete on and as of
the Subsequent Closing Date with the same force and effect as if they had been
made on and as of the Subsequent Closing Date.
(c) PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by ATI and the Company on or
prior to the Subsequent Closing Date shall have been performed or complied with.
(d) OPINION OF COMPANY'S COUNSEL. BioChem shall have received an opinion
of counsel for ATI and the Company, substantially in the form of EXHIBIT C
hereto.
(e) 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 BioChem and its counsel, each of
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whom shall have received all such originals or certified or other copies of such
documents as each may reasonably request.
(f) NO PROCEEDINGS. 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,
the Research Agreement or the License Agreement, or any transaction contemplated
hereby or thereby.
(g) 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 ImmunoGen Warrant and the Preferred Shares (except as
otherwise provided in this Agreement).
(h) OFFICER'S CERTIFICATE DELIVERED BY ATI. ATI shall have delivered to
BioChem a certificate, dated the Subsequent Closing Date and signed by the Chief
Executive Officer or the President of ATI, to the effect that each of the
conditions to be satisfied by ATI pursuant to this Section 6.2 on or before the
Subsequent Closing Date has been duly satisfied, and representing that ATI has
sufficient cash and other resources (excluding the funds to be paid to ATI by
BioChem on such Subsequent Closing) to allow it to continue its planned
operations (other than performance of its obligations under the Research
Agreement) for a period of six months from the Subsequent Closing Date.
(i) OFFICER'S CERTIFICATE DELIVERED BY COMPANY. The Company shall have
delivered to BioChem a certificate, dated the Subsequent 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 6.2 on or before the Subsequent Closing Date has been duly satisfied.
(j) RESEARCH AGREEMENT AND LICENSE AGREEMENT. The Research Agreement and
the License Agreement shall have been executed and delivered by the parties
thereto and a BioChem Party shall not have terminated the Research Agreement or
the License Agreement for cause; provided, however, that if a BioChem Party
shall have given ATI notice of breach under the Research Agreement or the
License Agreement, the Subsequent Closing Date shall be postponed during any
applicable cure period (but for no additional period) in which case, (a) if the
breach is cured, the Subsequent Closing shall take place at a place and time
mutually agreed by the parties within five (5) calendar days after such cure is
effected, or (b) if the breach is not cured within the applicable cure period,
this Agreement shall be deemed terminated automatically as of the end of such
cure period without the need to give notice.
(k) CERTIFICATE OF VOTE. The Certificate of Vote with respect to the
Preferred Shares to be issued on the Subsequent Closing Date shall have been
filed with the Secretary of State of the Commonwealth of Massachusetts.
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(l) AMOUNTS OWED TO THE COMPANY CONVERTED TO ATI COMMON STOCK. The
ImmunoGen Note shall have been converted into 22,207,966 shares of ATI Common
Stock, and if the actual indebtedness through July 31, 1997 is subsequently
determined to have been in excess of $14,435,178, the excess amount shall also
have been converted into ATI Common Stock.
(m) AUTHORIZATION OF IMMUNOGEN COMMON STOCK. With respect to any
Subsequent Closing which occurs after the first anniversary of the execution of
this Agreement, the Company shall have authorized and reserved for issuance the
aggregate number of Warrant Shares issuable upon exercise of any unexercised
ImmunoGen Warrants previously issued to BioChem and the ImmunoGen Warrant to be
issued in connection with such Subsequent Closing.
(n) RESERVATION OF IMMUNOGEN COMMON STOCK. Promptly upon obtaining
stockholder approval of an increase in the authorized ImmunoGen Common Stock,
the Company shall have reserved for issuance the Warrant Shares.
(o) REGISTRATION AGREEMENTS. ATI and BioChem, and ImmunoGen and BioChem,
shall have executed and delivered Registration Agreements in the form of EXHIBIT
G hereto.
(p) ASSIGNMENT AGREEMENT AND SERVICES AGREEMENT. ATI and ImmunoGen shall
have entered into an Assignment Agreement in the form of EXHIBIT D and a
Services Agreement in the form of EXHIBIT E, and neither agreement shall have
been amended, without the prior written consent of BioChem, or breached, and the
Proprietary Information and Inventions Agreements in the form of EXHIBIT F shall
not have been amended.
(q) INSOLVENCY. No filing or institution of bankruptcy, reorganization,
liquidation or receivership proceedings shall have been made with respect to
ATI, nor shall ATI have made an assignment of a substantial portion of its
assets for the benefit of creditors, nor shall a receiver or custodian be
appointed for ATI's business nor shall a substantial portion of ATI's business
be subject to attachment or similar process; PROVIDED, HOWEVER, in the case of
any involuntary bankruptcy proceeding, such condition shall only be deemed not
to have been satisfied if ATI consents to the involuntary bankruptcy or such
proceeding is not dismissed within sixty (60) days after the filing thereof.
ARTICLE VII -- CONDITIONS TO ATI'S AND THE COMPANY'S OBLIGATIONS
SECTION 7.1 CONDITIONS TO INITIAL CLOSING. The obligation the Company and
ATI to issue the ImmunoGen Warrant and the Preferred Shares, respectively, to
BioChem on the Initial Closing Date is subject to the following:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
BioChem made herein shall be true, correct and complete in all respects on and
as of the Initial Closing Date with the same force and effect as if they had
been made on and as of the Initial Closing Date.
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(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 ImmunoGen Warrant and the Preferred Shares (except as
otherwise provided in this Agreement).
(d) RESEARCH AGREEMENT AND LICENSE AGREEMENT. The Research Agreement and
the License Agreement shall have been executed and delivered by the parties
thereto and a BioChem Party shall not have breached the Research Agreement or
the License Agreement.
SECTION 7.2 CONDITIONS TO SUBSEQUENT CLOSINGS. The obligation of ATI and
the Company to issue the Preferred Shares and an ImmunoGen Warrant to BioChem on
each Subsequent Closing Date is subject to the following:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
BioChem made herein shall be true, correct and complete in all material respects
on and as of the Subsequent Closing Date with the same force and effect as if
they had been made on and as of the Subsequent 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 Preferred Shares (except as otherwise provided in this
Agreement).
(d) RESEARCH AGREEMENT AND LICENSE AGREEMENT. The Research Agreement and
the License Agreement shall have been executed and delivered by the parties
thereto and a Biochem Party shall not have breached the Research Agreement or
the License Agreement.
ARTICLE VIII--COVENANTS OF THE COMPANY
SECTION 8.1 INCREASE IN AUTHORIZED IMMUNOGEN COMMON STOCK. The Company
covenants and agrees that it will use its reasonable best efforts to obtain
stockholder approval of an amendment to the Company's Restated Articles of
Organization, as amended, increasing the number of its authorized shares of
ImmunoGen Common Stock such that it will have sufficient Warrant Shares at its
next annual or special meeting of stockholders, whichever shall occur first, and
that promptly upon obtaining such stockholder approval, it will file Articles of
Amendment with the Massachusetts Secretary of State with respect to such
increase in the authorized ImmunoGen Common Stock and will have reserved for
issuance upon exercise of the then outstanding ImmunoGen Warrants the number of
Warrant Shares issuable on exercise thereof.
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SECTION 8.2 STOCKHOLDER APPROVAL. In the event that on July 31, 2000, the
Exercise Price (as defined in the ImmunoGen Warrants) is below $1.237 per share,
the Company covenants and agrees that it will use its reasonable best efforts to
obtain Stockholder Approval (as defined in the ImmunoGen Warrants) as
expeditiously as possible thereafter in order to permit the ImmunoGen Warrants
to be exercised without regard to the limitation on the number of shares
issuable thereunder as set forth in Section 3(f) of the ImmunoGen Warrants;
PROVIDED THAT the Company shall only be required to obtain such Stockholder
Approval if and for so long as the following conditions are met: (A) the
ImmunoGen Common Stock is then listed for trading on the Nasdaq National Market,
(B) the Exercise Price in effect is less than $1.237, (C) the Company has not
previously obtained such Stockholder Approval, (D) the Company has not obtained
a waiver of the Stockholder Approval requirement of Rule 4460(i) of the Nasdaq
Stock Market (or any successor or replacement provision thereof) ("Rule
4460(i)"), and (E) the Company is required to obtain Stockholder Approval under
Rule 4460(i) as a condition to continued listing on the Nasdaq Stock Market.
ARTICLE IX--COVENANTS OF ATI
SECTION 9.1 RESTRICTED ACTIONS. Without the prior written consent of
BioChem, ATI covenants and agrees that during the Research Term (as defined in
the Research Agreement) it will not:
(a) become subject to any agreement or instrument which by its terms would
restrict ATI's ability to comply with the terms of this Agreement or the
Research Agreement or the License Agreement;
(b) organize into any form other than a corporation;
(c) make any material change in the nature of ATI's business from that of
the biology of major diseases and discovery of targets for the therapy of such
diseases and other related activities that facilitate or contribute to the
development of such business; and
(d) not to undergo a change in control for purposes of Section 8.5 of the
Research Agreement; provided that, this restriction shall cease to be effective
and shall cease to be binding upon ATI as of the date that BioChem and its
Affiliates together no longer hold an aggregate of 75% or more of the total
number of Preferred Shares and underlying ATI Common Shares which have been
issued to BioChem under this Agreement (a "Substantial Interest") as of the date
such change in control shall be contemplated to occur.
The provisions of this 9.1 shall cease to be effective and shall cease to
be binding on ATI upon termination of the Research Agreement pursuant to its
terms.
SECTION 9.2 RESERVATION OF ATI COMMON SHARES. ATI shall at all times
reserve and keep available out of its authorized but unissued shares of ATI
Common Stock, solely for the
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purpose of issuance upon the conversion of the Preferred Shares, the ATI Common
Shares issuable upon conversion of all outstanding Preferred Shares, which shall
be not less than fifteen percent (15%) of the number of shares of ATI Common
Stock outstanding at any time, reduced proportionately to take into account any
Preferred Shares previously converted . All of the ATI Common Shares which are
so issuable shall, when issued, be duly and validly issued, fully paid and
non-assessable. ATI shall take all such actions as may be necessary to assure
that the ATI Common Shares may be so issued without violation of any applicable
law or governmental regulation or any requirements of any domestic securities
exchange upon shares of ATI Common Stock may be listed (except for official
notice of issuance which shall be transmitted by ATI upon issuance).
SECTION 9.3 CURRENT PUBLIC INFORMATION. At all times after the ATI Common
Stock is registered or ATI otherwise becomes subject to the reporting
requirements pursuant to the Exchange Act, with a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the ATI Common Shares to the public without registration
or a registration on SEC Form S-2 or S-3, ATI agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act of 1933, as amended
(the "Securities Act");
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act;
(c) So long as BioChem owns any Preferred Shares or ATI Common
Shares, to furnish to BioChem forthwith upon request (i) a written statement by
ATI as to whether it complies with the reporting requirements of said Rule 144,
the Securities Act and the Exchange Act, or whether it qualifies as a registrant
whose securities may be resold pursuant to SEC Form S-2 or S-3, (ii) a copy of
the most recent annual or quarterly report of ATI and such other reports and
documents so filed by ATI, and (iii) such other information as may be reasonably
requested in availing BioChem of any rule or regulation of the Commission which
would permit the selling of the ATI Common Shares without registration.
SECTION 9.4. USE OF PROCEEDS. ATI covenants and agrees to use all proceeds
of the sale of the Preferred Shares and ImmunoGen Warrant to finance the
Research Program (as defined in the Research Agreement) and for no other
purpose. ATI further covenants and agrees not to transfer funds to the Company
except pursuant to the Services Agreement.
SECTION 9.5 RIGHTS OF INSPECTION. ATI shall permit representatives of
BioChem (for so long as BioChem holds a Substantial Interest in ATI) on
reasonable prior notice, to visit and inspect any of the properties of ATI and
examine and make abstracts of any of its books and records at any time during
normal business hours and shall make available for questioning at such times
such employees, officers, directors and independent accountants of ATI as may be
reasonably requested by BioChem. The presentation of an executed copy of this
Agreement by
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BioChem to ATI or the Company's independent accountants shall constitute ATI's
and the Company's authorization to such accountants to participate in
discussions with such person as to ATI (and not as to the Company).
SECTION 9.6 FINANCIAL STATEMENTS. ATI shall provide to BioChem (a) within
forty-five (45) days after the end of each fiscal quarter (other than the fourth
quarter of its fiscal year), unaudited financial statements of ATI, and (b)
within ninety (90) days after the end of each fiscal year commencing with ATI's
fiscal year ending June 30, 1998, financial statements of ATI audited by the
Company's independent public accountants.
SECTION 9.7 REDEMPTION. ATI covenants and agrees that it will not redeem
any of its Junior Securities (as defined in the Certificate of Vote) so long as
any Preferred Shares are outstanding.
ARTICLE X--SURVIVAL AND INDEMNIFICATION
10.1 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, and in writing delivered pursuant hereto, shall survive the Initial
Closing and shall be fully effective and enforceable until such time as the
Research Agreement shall have been terminated pursuant to its terms, except the
covenants of the parties and Sections 3.1, 3.2, 3.3, 3.5, 4.1, 4.2, 4.3 and 4.5
shall survive beyond the termination of the Research Agreement.
10.2 INDEMNIFICATION.
(a) The Company and ATI shall jointly and severally indemnify BioChem, 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 or ATI in this Agreement;
(b) BioChem agrees to indemnify the Company and ATI and their respective
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
BioChem 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 "indemnification party") shall
promptly notify the person against whom such indemnify 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 10.2(c) shall not in any way affect the
indemnifying party's
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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 is 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 disbursement 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 XI TERMINATION
SECTION 11.1 TERMINATION. In the event that any Subsequent Closing fails
to occur because the conditions to such closing set forth in Section 6.2 or 7.2
have not been met or waived by the appropriate party, the rights and obligations
of the parties, including the obligation of BioChem to purchase and pay for the
Preferred Shares and the ImmunoGen Warrant and the obligation of ATI and the
Company to issue the Preferred Shares and the ImmunoGen Warrant, respectively,
shall terminate automatically without the need to give notice; provided that the
provisions of Article X (Survival and Indemnification) and Sections 11.13
(Confidentiality) and 11.15 (Arbitration) shall survive such termination and the
rights of the holders of Preferred Shares and ImmunoGen Warrants shall not be
effected by such termination.
ARTICLE XII-- MISCELLANEOUS
SECTION 12.1 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 BioChem: BioChem Pharma (International) Inc.
c/o BioChem Therapeutic Inc.
000 Xxxxxx-Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxx
Attn: President
Fax: 514/000-0000
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With a copy to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to ATI: Apoptosis Technology, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: President
Fax: 617/000-0000
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
If to the Company: ImmunoGen, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax: 617/000-0000
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,
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(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 12.2 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 12.3 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 ATI, the Company and BioChem. 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 12.4 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 this Agreement nor any or all of the rights and
obligations of a party hereunder shall be assigned, delegated, sold, transferred
or otherwise desposed of by operation of law or otherwise, to any third person
with 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 12.4 shall be void and without force or effect; provided,
however that BioChem may, without the consent of ATI assign this Agreement and
its rights and obligations hereunder to an Affiliate, or in connection with the
transfer or sale of all or substantially all of its assets related to the
division or the subject business relating hereto, or in the event of a change in
control of BioChem, subject to Section 1.5 hereof. This Agreement shall be
binding upon and insure to the benefit of each party, it Affiliates, and its
permitted successors and assigns. Each party shall be responsible for the
compliance by its Affiliates with the terms and conditions of this Agreement.
SECTION 12.5 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 12.6 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.
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SECTION 12.7 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 12.8 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 12.9 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 12.10 EXPENSES. Except as provided in Sections 2.2 and 10.2, each
of the parties shall pay its own fees and expenses (including the fees of any
attorneys, accountants, appraisers or 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 12.11 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 12.12 PUBLICITY. No party shall issue any press releases or
otherwise make any public statement with respect to the transactions
contemplated by this Agreement without the prior written consent of the other
party, except as may be required by applicable law or regulation.
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SECTION 12.13 CONFIDENTIALITY. BioChem acknowledges and agrees that any
information or data it has acquired from ATI or the Company, which is clearly
designated in writing as confidential and is not otherwise properly in the
public domain, was received in confidence. BioChem 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 ATI or the Company or for the
benefit of any other person or persons, or misuse in any way, any confidential
information of ATI or the Company, except as otherwise provided in the Research
Agreement.
SECTION 12.14 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 12.15 ARBITRATION. The parties shall mutually consult in good
faith in an attempt to settle amicably in the spirit of co-operation any and all
disputes arising out of or in connection with this Agreement or questions
regarding the interpretation of the provisions hereof. Each dispute arising out
of or in connection with this Agreement or question regarding the interpretation
hereof which cannot be settled amicably within two (2) months from the date of
notification of either party to the other of such dispute or question, which
notice shall specify the details of such dispute or question, shall be finally
settled by binding arbitration, in English, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, by one (1) arbitrator
appointed in accordance with such Rules. If the parties cannot agree on the
arbitrator to be so appointed, each party shall be entitled to appoint one (1)
arbitrator and the two (2) arbitrators so appointed shall agree upon a third.
The arbitrator(s) shall have the technical expertise required to understand and
arbitrate the dispute. Such arbitration shall be held in Laval, Quebec if
initiated by ATI or the Company and in Cambridge, Massachusetts if initiated by
BioChem. The costs of any arbitration, including administrative and arbitrators'
fees, shall be allocated 50% to BioChem and 50% to ATI and the Company and each
party shall bear its own costs and attorneys' and witness' fees; PROVIDED,
HOWEVER, that the prevailing party, if determined by the arbitrator(s), shall be
entitled to an award against the other party in the amount of the prevailing
party's costs (including arbitration costs) and reasonable attorney's fees.
The arbitration carried out hereunder shall apply to the exclusion of
regular legal means, provided that the rights of the parties in urgent
situations in which time is of the essence to obtain proper remedies in courts
of law or equity shall remain unimpaired. There shall be no appeal from the
decision or findings of the arbitrator(s), which shall be final and binding upon
the parties and may be entered in any court having proper jurisdiction.
SECTION 12.16 GRANT OF SECURITY INTEREST. ATI hereby assigns and transfers
to BioChem, and hereby grants to BioChem, a security interest in the ATI
Screens, ATI inventions, ATI Technology and ATI Patent Rights (as such terms are
defined in the Research Agreement) now owned or at any time hereafter acquired
by ATI or in which ATI now has or any time in the future may acquire any right,
title or interest (collectively, the "Collateral"), and any proceeds and
products of such Collateral as collateral security for the prompt and complete
performance when
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24
due of ATI's obligations under this Agreement, and BioChem shall have the right
to satisfy any and all claims for a breach of this Agreement out of the
Collateral; and BioChem shall have the rights of a secured creditor under
applicable law, including the Uniform Commercial Code.
SECTION 12.17 FURTHER ASSURANCES. In case at any time after the Initial
Closing any further action is necessary or desirable to carry out the proposes
of this Agreement (including the execution by ATI and filing with the
appropriate governmental entity of statements (and any renewals or amendments
thereto) acknowledging, evidencing and/or perfecting the security interest of
BioChem in the Collateral) ATI and BioChem will take such further action as the
other party may request, all at the sole cost and expense of the requesting
party (unless the requesting party is entitled to indemnification therefor under
Article X).
[Remainder of page intentionally left blank]
24
25
IN WITNESS WHEREOF, the undersigned have executed this Stock Purchase
Agreement this 31st day of July, 1997.
APOPTOSIS TECHNOLOGY, INC.
By: _________________________
Name:
Title:
IMMUNOGEN, INC.
By: _________________________
Name:
Title:
BIOCHEM PHARMA (INTERNATIONAL) INC.
By: _________________________
Name:
Title:
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26
LIST OF SCHEDULES AND EXHIBITS
Schedule 3.2 Capitalization of ATI
Schedule 3.4 ATI Governmental Consents, etc.
Schedule 4.2 Capitalization of the Company
Schedule 4.4 Company Governmental Consents, etc.
Schedule 4.6 Exceptions to Accuracy of Reports and Information and Draft
Financial Statements
Exhibit A Form of ImmunoGen Warrant
Exhibit B Designations, Powers, Preferences, and Other Terms of Preferred
Shares
Exhibit C Form of Legal Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C.
Exhibit D Form of Assignment Agreement
Exhibit E Form of Services Agreement.
Exhibit F Form of Propriety Information and Inventions Agreement
Exhibit G Form of Registration Agreements
27
Schedule 3.2
Apoptosis Technology, Inc.
CAPITALIZATION AS OF JULY 31, 1997
COMMON STOCK AUTHORIZED OUTSTANDING
------------ ---------- -----------
Common Stock (no treasury shares) 35,000,000 23,567,966
OPTIONS AND WARRANTS
--------------------
Consultants options and rights to 90,000
purchase Common Stock
PREFERRED STOCK
---------------
Class A Convertible Preferred 7,000 7,000
Stock
Undesignated Preferred Stock 11,125 0
Under the terms of a Capital Contribution Agreement dated as of January 11, 1993
between the Company and ATI, the Company has agreed to furnish or obtain an
additional $3 million equity investment in ATI. In the event that the Company
elects to furnish this equity, Xxxx-Xxxxxx Cancer Institute ("DCFI") and Xx.
Xxxxxx Xxxxxxxxxx may elect to participate in such additional investment on a
pro rata basis to maintain their respective percentage ownership. On July 16,
1997, the Company gave notice to DCFI and Xx. Xxxxxxxxxx of its election to
furnish an additional $3.0 million equity investment in ATI itself.
DFCI, Xx. Xxxxxxxxxx and Imperial Cancer Research Technology Limited have
entered into stockholder agreements with ATI, copies of which have been provided
to BioChem.
28
Schedule 3.4
Apoptosis Technology, Inc.
GOVERNMENTAL CONSENTS, ETC.
ATI will file a Form D with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, following the Initial Closing and each
Subsequent Closing.
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Schedule 4.2
ImmunoGen, Inc.
CAPITALIZATION AS OF MARCH 31, 1997
COMMON STOCK AUTHORIZED OUTSTANDING
------------ ---------- -----------
Common Stock (no treasury shares) 30,000,000 21,779,767
OPTIONS AND WARRANTS
--------------------
Employee and Director Stock Options 1,500,766
Common Stock Purchase Warrants 3,597,864
PREFERRED STOCK
---------------
Preferred Stock 5,000,000
Series A (October 1996) 2,500 1,100
Series B (October 1996) 3,000 0
Series C (January 1997) 3,000 7000
Series D (June 1997) 1,000 1,000
*Excludes 400,000 employee stock options granted by the Compensation Committee
on June 17, 1997. These options are yet to be designated and approved by the
Compensation Committee and are also subject to approval by the Company's
shareholders of the proposal to increase the number of authorized common shares.
All of the ImmunoGen Common Stock has been issued or reserved for issuance.
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Schedule 4.4
ImmunoGen, Inc.
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 and each Subsequent Closing.
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SCHEDULE 4.6
EXCEPTION TO ACCURACY OF REPORTS AND INFORMATION AND DRAFT FINANCIAL STATEMENTS
(a) ACCOUNTING TREATMENT OF CONVERTIBLE DEBENTURES AND CONVERTIBLE PREFERRED
STOCK
In March 1997, the Securities and Exchange Commission issued a Staff
Interpretations related to the accounting for convertible preferred stock and
convertible debt instruments issued with provisions providing for conversion
into common stock at a discount from the market price of the common stock. This
Staff Interpretation, together with the value of warrants to be issued to
preferred shareholders, resulted in the restatement of the Company's Annual
Report on Form 10-K for the year ended June 30, 1996, and its quarterly reports
on Form 10-Q for the quarters ended September 30, 1996 and December 31, 1996.
(b) DRAFT FINANCIAL STATEMENTS
[*]
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EXHIBIT A
FORM OF IMMUNOGEN WARRANT
Filed as Exhibit 10.37 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended June 30, 1997.
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EXHIBIT B
DESIGNATION, POWERS, PREFERENCE AND OTHER
TERMS OF PREFERRED SHARES
CONTINUATION SHEETS
DESCRIPTION AND DESIGNATION OF SERIES B PREFERRED STOCK
SECTION 1. DESIGNATION, AMOUNT AND PAR VALUE. The series of
Preferred Stock shall be designated as the Series B Convertible Preferred Stock
(the "Series B Preferred Stock"), and the number of shares so designated shall
be 11,125. The par value of each share of Series B Preferred Stock shall be
$.01. Each share of Series B Preferred Stock shall have a stated value of $1,000
per share (the "Stated Value").
SECTION 2. DIVIDENDS. In the event the Board of Directors of the
Company shall declare a dividend payable upon the then outstanding shares of
Junior Securities (other than a dividend payable entirely in shares of the
Common Stock of the Company), the Board of Directors shall declare at the same
time a dividend upon the then outstanding shares of the Series B Preferred
Stock, payable at the same time as the dividend paid on the Common Stock, in an
amount equal to the amount of dividends per share of Series B Preferred Stock,
as would have been payable on the largest number of shares (including fractions
of shares) of Common Stock which each share of Series B Preferred Stock held by
each holder thereof would have received if such Series B Preferred Stock had
been converted to Common Stock pursuant to the provisions of Section 5 hereof as
of the record date for the determination of holders of Common Stock entitled to
receive such dividends.
SECTION 3. VOTING RIGHTS. Except as otherwise provided herein and as
otherwise provided by law, the Series B Preferred Stock shall have no voting
rights. However, so long as any shares of Series B Preferred Stock are
outstanding, the Company shall not, without the affirmative vote of the holders
of a majority of the shares of the Series B Preferred Stock then outstanding,
(a) alter or change adversely the powers, preferences or rights given to the
Series B Preferred Stock or (b) authorize or create any Pari Passu Securities or
Senior Securities.
SECTION 4. LIQUIDATION. Upon any liquidation, dissolution or
winding-up of the Company, whether voluntary or involuntary (a "Liquidation"),
after payment of all amounts owing to holders of Senior Securities, the holders
of shares of Series B Preferred Stock shall be entitled to receive out of the
assets of the Company available for distribution to holders of the Company's
capital stock, on a parity with holders of any Pari Passu Securities but before
payment or distribution of any of such assets to the holders of Junior
Securities, for each share of Series B Preferred Stock an amount equal to the
Stated Value, plus an amount equal to all declared but unpaid dividends per
share, without interest, and if the assets of the Company shall be insufficient
1
34
to pay in full such amounts, then the entire assets to be distributed shall be
distributed among the holders of Series B Preferred Stock and Pari Passu
Securities ratably in accordance with the respective amounts that would be
payable on such shares if all amounts payable thereon were paid in full. A sale,
conveyance or disposition of all or substantially all of the assets of the
Company or the effectuation by the Company of a transaction or series of related
transactions in which more than 50% of the voting power of the Company is
disposed of shall be deemed a Liquidation; provided that, a consolidation or
merger of the Company with or into any other company or companies shall not be
treated as a Liquidation, but instead shall be subject to the provisions of
Section 5(D). The Company shall mail written notice of any such Liquidation, not
less than 30 days prior to the payment date stated therein, to each record
holder of Series B Preferred Stock.
SECTION 5. CONVERSION.
A. Each share of Series B Preferred Stock shall be convertible into
shares of Common Stock at the Conversion Ratio, at the option of the holder in
whole or in part at any time after July 31, 2000. Any conversion under this
Section 5(A) shall be of a minimum amount of the lesser of 100 shares of Series
B Preferred Stock and the number of shares of Series B Preferred Stock then held
by the converting holder. The holder of the Series B Preferred Stock shall
effect conversions by surrendering the certificate or certificates representing
the shares of Series B Preferred Stock to be converted to the Company, together
with the form of conversion notice attached hereto as Exhibit A (the "Holder
Conversion Notice"), in the manner set forth in Section 5(I), which Holder
Conversion Notice, once given, shall be irrevocable. Each Holder Conversion
Notice shall specify the number of shares of Series B Preferred Stock to be
converted and the date on which such conversion is to be effected, which date
may not be prior to July 31, 2000 or the date the holder of Series B Preferred
Stock delivers such Notice by facsimile (the "Holder Conversion Date"). If a
holder of Series B Preferred Stock is converting less than all of the shares of
Series B Preferred Stock represented by the certificate(s) tendered by such
holder with the Holder Conversion Notice, the Company shall promptly deliver to
such holder a certificate for such number of shares as have not been converted.
B. Each share of the Series B Preferred Stock shall be convertible
into shares of Common Stock at the Conversion Ratio at the option of the Company
in whole or in part at any time on or after July 31, 2002; PROVIDED, HOWEVER,
that the Company is not permitted to deliver a Company Conversion Notice (as
defined below) unless on the Company Conversion Date (as hereinafter defined)
the Common Stock is Publicly Traded; and PROVIDED, FURTHER, that the Company
shall not be permitted to deliver a Company Conversion Notice within ten (10)
days of issuing any press release or other public statement relating to such
conversion. The Company shall effect such conversion by delivering to the
holders of such shares of Series B Preferred Stock to be converted a written
notice in the form attached hereto as EXHIBIT B (the "Company Conversion
Notice"), which Company Conversion Notice, once given, shall be irrevocable.
Each Company Conversion Notice shall specify the number of shares of Series B
Preferred Stock to be converted and the date on which such conversion is to be
effected, which date may not be prior to
2
35
July 31, 2001 or the date the Company delivers such Notice by facsimile to the
holder (the "Company Conversion Date"). The Company shall give such Company
Conversion Notice in accordance with Section 5(I) below. Any such conversion
shall be effected on a pro rata basis among the holders of Series B Preferred
Stock. Upon the conversion of shares of Series B Preferred Stock pursuant to a
Company Conversion Notice, the holders of the Series B Preferred Stock shall
surrender the certificates representing such shares at the office of the Company
or of any transfer agent for the Series B Preferred Stock or Common Stock not
later than three (3) Trading Days after the Company Conversion Date. Each of a
Holder Conversion Notice and a Company Conversion Notice is sometimes referred
to herein as a "Conversion Notice," and each of a "Holder Conversion Date" and a
"Company Conversion Date" is sometimes referred to herein as a "Conversion
Date."
C. Not later than three (3) Trading Days after the Conversion
Date, the Company will deliver to the holder of Series B Preferred Stock (i) a
certificate or certificates which shall be free of restrictive legends and
trading restrictions (other than those then required by law), representing the
number of shares of Common Stock being acquired upon the conversion of shares of
Series B Preferred Stock, and (ii) one or more certificates representing the
number of shares of Series B Preferred Stock not converted; PROVIDED, HOWEVER,
that the Company shall not be obligated to issue certificates evidencing the
shares of Common Stock issuable upon conversion of any shares of Series B
Preferred Stock until certificates evidencing such shares of Series B Preferred
Stock are either delivered for conversion to the Company or any transfer agent
for the Series B Preferred Stock or Common Stock, or the holder of Series B
Preferred Stock notifies the Company that such certificates have been lost,
stolen or destroyed and provides a bond or other adequate security reasonably
acceptable to the Company to indemnify the Company from any loss incurred by it
in connection therewith.
D. 1. The conversion price for each share of Series B Preferred
Stock (the "Conversion Price") in effect on any Conversion Date shall be the
lower of (a) the average Per Share Market Value for the five (5) Trading Days
immediately preceding the Conversion Date and (b) the price per share which
would, if all shares of Series B Preferred Stock outstanding on such Conversion
Date were converted into Common Stock, cause the number of shares of Common
Stock so converted by the holder, when added to any shares of Common Stock
previously issued on conversion of Series B Preferred Stock, to equal fifteen
percent (15%) of the total number of shares of Common Stock outstanding on a
fully diluted basis on such Conversion Date.
2. In case of any reclassification of the Common Stock, any
consolidation or merger of the Company with or into another person, the sale or
transfer of all or substantially all of the assets of the Company or any
compulsory share exchange pursuant to which the Common Stock is converted into
other securities, cash or property, the holders of Series B Preferred Stock then
outstanding shall have the right thereafter to convert such shares only into the
shares of stock and other securities and property receivable upon or deemed to
be
3
36
held by holders of Common Stock following such reclassification, consolidation,
merger, sale, transfer or share exchange, and the holders of Series B Preferred
Stock shall be entitled upon such event to receive such amount of securities or
property as the shares of the Common Stock into which such shares of Series B
Preferred Stock could have been converted immediately prior to such
reclassification, consolidation, merger, sale, transfer or share exchange would
have been entitled. The terms of any such consolidation, merger, sale, transfer
or share exchange shall include such terms so as to continue to give to the
holder of Series B Preferred Stock the right to receive the securities or
property set forth in this Section 5(D)(2) upon any conversion following such
consolidation, merger, sale, transfer or share exchange. This provision shall
similarly apply to successive reclassifications, consolidations, mergers, sales,
transfers or share exchanges.
3. If the approval of any stockholders of the Company shall be
required in connection with any reclassification of the Common Stock of the
Company (other than a subdivision or combination of the outstanding shares of
Common Stock), any consolidation or merger to which the Company is a party, any
sale or transfer of all or substantially all of the assets of the Company, or
any compulsory share exchange whereby the Common Stock is converted into other
securities, cash or property, or the Company shall authorize the voluntary or
involuntary dissolution, liquidation or winding-up of the affairs of the
Company, then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Series B Preferred Stock, and shall
cause to be mailed to the holders of Series B Preferred Stock at their last
respective addresses as they shall appear upon the stock books of the Company,
at least 30 calendar days prior to the applicable record or effective date
hereinafter specified, a notice stating the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding-up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding-up; PROVIDED, HOWEVER, that the failure to
mail such notice or any defect therein or in the mailing thereof shall not
affect the validity of the corporate action required to be specified in such
notice.
E. The Company covenants that it will at all times reserve and
keep available out of its authorized and unissued Common Stock solely for the
purpose of issuance upon conversion of Series B Preferred Stock as herein
provided, free from preemptive rights or any other actual contingent purchase
rights of persons other than the holders of Series B Preferred Stock, such
number of shares of Common Stock as shall be issuable upon the conversion of the
aggregate principal amount of all outstanding shares of Series B Preferred
Stock. The Company covenants that all shares of Common Stock that shall be so
issuable shall, upon issue, be duly and validly authorized and issued and fully
paid and nonassessable.
F. Upon a conversion hereunder the Company shall not be required
to issue stock certificates representing fractions of shares of Common Stock,
but may if otherwise permitted, make a cash payment in respect of any final
fraction of a share based on the Per Share
4
37
Market Value at such time. If the Company elects not to, or is unable to, make
such a cash payment, the holder of Series B Preferred Stock shall be entitled to
receive, in lieu of the final fraction of a share, one whole share of Common
Stock.
G. The issuance of certificates for shares of Common Stock on
conversion of Series B Preferred Stock shall be made without charge to the
holders thereof for any documentary stamp or similar taxes that may be payable
in respect of the issue or delivery of such certificate, provided that the
Company shall not be required to pay any tax that may be payable in respect of
any transfer involved in the issuance and delivery of any such certificate upon
conversion in a name other than that of the holder of such shares of Series B
Preferred Stock so converted and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
H. Shares of Series B Preferred Stock converted into Common Stock
shall be canceled and shall have the status of authorized but unissued shares of
preferred stock.
I. Each Holder Conversion Notice shall be given by facsimile and by
mail, postage prepaid, addressed to the attention of the Chief Financial Officer
of the Company at the facsimile telephone number and address of the principal
place of business of the Company. Each Company Conversion Notice shall be given
by facsimile and by mail, postage prepaid, addressed to each holder of Series B
Preferred Stock at the facsimile telephone number and address of such holder
appearing on the books of the Company or provided to the Company by such holder
for the purpose of such Company Conversion Notice, or if no such facsimile
telephone number or address appears or is so provided, at the principal place of
business of the holder. Any such notice shall be deemed given and effective upon
the earliest to occur of (i)(a) if such Conversion Notice is delivered via
facsimile at the facsimile telephone number specified in this Section 5(I) prior
to 4:30 p.m. (Eastern Standard Time) on any date, such date or such later date
as is specified in the Conversion Notice, and (b) if such Conversion Notice is
delivered via facsimile at the facsimile telephone number specified in this
Section 5(I) at or after 4:30 p.m. (Eastern Standard Time) on any date, the next
date or such later date as is specified in the Conversion Notice, (ii) five days
after deposit in the United States mails or (iii) upon actual receipt by the
party to whom such notice is required to be given.
SECTION 6. DEFINITIONS. For the purposes hereof, the following terms
shall have the following meanings:
"Appraiser" means a nationally recognized or major regional
investment banking firm or firm of independent certified public accountants of
recognized standing (which may be the firm that regularly examines the financial
statements of the Company).
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"Business Day" means any day of the year on which commercial banks
are not required or authorized to be closed in New York City.
"Class A Preferred Stock" means the 7,000 authorized shares of the
Class A Preferred Stock, $.01 par value, of the Company and stock of any other
class into which such shares may hereafter have been reclassified or changed.
"Common Stock" means shares now or hereafter authorized of the class
of Common Stock, $.00002 par value, of the Company and stock of any other class
into which such shares may hereafter have been reclassified or changed.
"Conversion Ratio" means, at any time, a fraction, of which the
numerator is the Stated Value plus all declared but unpaid dividends, and of
which the denominator is the Conversion Price at such time.
"Junior Securities" means the Common Stock, the Class A Preferred
Stock and all other classes of equity securities of the Company hereafter
created (unless, with the consent of the holders of the Series B Preferred Stock
obtained in accordance with Section 3 hereof, such class or series of capital
stock by its terms ranks senior to the Series B Preferred Stock).
"Pari Passu Securities" means any class or series of capital stock
of the Company hereafter created with the consent of the holders of Series B
Preferred Stock obtained in accordance with Section 3 hereof ranked as to
dividends or distribution of assets upon a Liquidation on a parity with the
Series B Preferred Stock.
"Per Share Market Value" means on any particular date (a) the
closing sale price per share of the Common Stock on such date on The Nasdaq
National Market or Nasdaq SmallCap Market or other stock exchange on which the
Common Stock has been listed or if there is no such price on such date, then the
closing sale price on such exchange on the date nearest preceding such date, or
(b) if the Common Stock is not listed on The Nasdaq National Market or Nasdaq
SmallCap Market or any stock exchange, the closing sale price for a share of
Common Stock in the over-the-counter market, as reported by the Nasdaq Stock
Market at the close of business on such date, or (c) if the Common Stock is not
quoted on the Nasdaq Stock Market, the closing sale price for a share of Common
Stock in the over-the-counter market as reported by the National Quotation
Bureau Incorporated (or similar organization or agency succeeding to its
functions of reporting prices), or (d) if the Common Stock is not reported by
the National Quotation Bureau Incorporated (or similar organization or agency
succeeding to its functions of reporting prices), then the average of the "Pink
Sheet" quotes for the relevant conversion period, or (e) if the Common Stock is
not publicly traded, the fair market value of a share of Common Stock as
determined by an Appraiser selected in good faith by the holders of a majority
in interest of the shares of the Series B Preferred Stock who shall conduct a
good faith appraisal; PROVIDED, HOWEVER, that the Company, after receipt of the
determination by such Appraiser, shall have the
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39
right to select an additional Appraiser, who shall conduct a good faith
appraisal, in which case, the fair market value shall be equal to the average of
the determinations by each such Appraiser.
"Person" means a corporation, an association, a partnership,
organization, a business, an individual, a government or political subdivision
thereof or a governmental agency.
"Publicly Traded" means with respect to the Common Stock that (a)
such Common Stock is traded on The Nasdaq National Market or Nasdaq SmallCap
Market or principal stock exchange on which the Common Stock has been listed, or
(b) if Common Stock is not listed on The Nasdaq National Market or Nasdaq
SmallCap Market or any stock exchange, such Common Stock is traded in the
over-the-counter market, as reported by the Nasdaq Stock Market, or (c) if such
Common Stock is not quoted on the Nasdaq Market, such Common Stock is quoted in
the over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding its functions of
reporting prices).
"Senior Securities" means any class or series of capital stock of
the Company hereafter created with the consent of the holders of Series B
Preferred Stock obtained in accordance with Section 3 hereof ranking as to
dividends or distribution of assets upon a Liquidation senior to the Series B
Preferred Stock..
"Trading Day" means (a) a day on which the Common Stock is traded on
The Nasdaq National Market or Nasdaq SmallCap Market or principal stock exchange
on which the Common Stock has been listed, or (b) if the Common Stock is not
listed on The Nasdaq National Market or Nasdaq SmallCap Market or any stock
exchange, a day on which the Common Stock is traded in the over-the-counter
market, as reported by the Nasdaq Stock Market, or (c) if the Common Stock is
not quoted on the Nasdaq Market, a day on which the Common Stock is quoted in
the over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding its functions of
reporting prices).
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EXHIBIT A
NOTICE OF CONVERSION
AT THE ELECTION OF HOLDER
(To be Executed by the Registered Holder to Convert shares of Series B
Preferred Stock)
The undersigned hereby irrevocably elects to convert the number of shares of
Series B Convertible Preferred Stock indicated below into shares of Common
Stock, par value $.01 per share (the "Common Stock"), of Apoptosis Technology,
Inc. (the "Company") according to the conditions hereof, as of the date written
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates and opinions as reasonably
requested by the Company in accordance therewith. No fee will be charged to the
Holder for any conversion, except for such transfer taxes, if any.
Conversion calculations:
---------------------------------------------------
Date to Effect Conversion
---------------------------------------------------
Number of Shares of Series B Preferred Stock to be
Converted
---------------------------------------------------
Applicable Conversion Price
---------------------------------------------------
Number of Shares of Common Stock to Issue
---------------------------------------------------
Signature
---------------------------------------------------
Name:
---------------------------------------------------
Address:
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EXHIBIT B
APOPTOSIS TECHNOLOGY, INC.
NOTICE OF CONVERSION AT
THE ELECTION OF THE COMPANY
The undersigned in the name and on behalf of Apoptosis Technology, Inc. (the
"Company") hereby notifies the addressee hereof that the Company hereby elects
to exercise its right to convert [ ] shares of its Series B Convertible
Preferred Stock held by the Holder into shares of Common Stock, par value $.01
per share (the "Common Stock"), of the Company according to the terms hereof, as
of the date written below. No fee will be charged to the Holder for any
conversion hereunder, except for such transfer taxes, if any which may be
incurred by the Company if shares are to be issued in the name of a person other
than the person to whom this notice is addressed.
Conversion calculations:
---------------------------------------------------
Date to Effect Conversion
Number of Shares of Series B Preferred Stock to be
Converted
---------------------------------------------------
Applicable Conversion Price
---------------------------------------------------
Number of Shares of Common Stock to Issue
---------------------------------------------------
Signature
---------------------------------------------------
Name:
---------------------------------------------------
Address:
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EXHIBIT C
FORM OF OPINION OF MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
July 31, 1997
BioChem Pharma (International) Inc.
000 Xxxxxx-Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxx
Re: IMMUNOGEN, INC. AND APOPTOSIS TECHNOLOGY, INC.
Gentlemen:
We have acted as counsel to ImmunoGen, Inc., a Massachusetts corporation
(the "Company"), and Apoptosis Technology, Inc., a Massachusetts corporation
("ATI"), in connection with the execution and delivery of the Stock Purchase
Agreement, dated of even date herewith (the "Purchase Agreement"), by and among
the Company, ATI and you (the "Purchaser"), pursuant to which, among other
things, ATI is issuing to the Purchaser shares of its Series B Convertible
Preferred Stock, par value $.01 per share (the "Preferred Shares"), and the
Company is issuing to the Purchaser certain warrants to purchase the Company's
common stock, par value $.01 per share (the "ImmunoGen Warrants"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
set forth in the Purchase Agreement. This opinion is delivered to you pursuant
to Section 6.1(c) of the Purchase Agreement.
In connection with this opinion, we have examined:
(a) An executed copy of the Purchase Agreement;
(b) The Certificate of Vote of Directors Establishing a Series of a Class
of Stock designating the Series B Convertible Preferred Stock of ATI, as filed
with the Secretary of State of the Commonwealth of Massachusetts on July 31,
1997 (the "Certificate of Vote");
(c) The Restated Articles of Organization and By-laws of the Company, each
as amended to the date hereof;
(d) The Restated Articles of Organization and By-laws of ATI, each as
amended to the date hereof;
(e) An executed copy of the Registration Agreement between ATI and the
Purchaser (the "ATI Registration Agreement"), an executed copy of the
Registration Agreement between the Company and the Purchaser (the "ImmunoGen
Registration Agreement"), an
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executed copy of the Assignment Agreement between ATI and the Company (the
"Assignment Agreement"), and an executed copy of the Services Agreement between
ATI and the Company (the "Services Agreement");
(f) Records of proceedings and actions of the Board of Directors of the
Company and the Board of Directors and stockholders of ATI relating to the
transactions contemplated by the Purchase Agreement and the Registration
Agreements, and such other records of corporate proceedings of the Company and
ATI as we deem material;
(g) An Officers' Certificate for the Company, dated of even date herewith
(the "Officers' Certificate");
(h) A Warrant Certificate dated of even date herewith, by the Company in
favor of the Purchaser (the "Initial Warrant"); and
(i) Certificates of Good Standing issued by the Secretary of State of the
Commonwealth of Massachusetts on July 30, 1997.
We have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
documents submitted to us a certified, conformed, facsimile or photostatic
copies, and the authenticity of certificates of public officials. We have also
assumed, without verification, the legal capacity of each individual who has
executed documents or instruments in connection with the transaction
contemplated hereby. With respect to certain factual matters, we have relied,
without independent investigation, on the facts stated in the representations
and warranties contained in the Purchase Agreement and the Schedules thereto,
the SEC Documents, the Registration Agreements and the Officers' Certificate.
We have also assumed, without verification (i) that the parties to the
Purchase Agreement, the Registration Agreements and the other agreements,
instruments and documents executed in connection therewith, other than the
Company and ATI, have the power (including, without limitation, corporate power
where applicable) and authority to enter into and perform the Purchase
Agreement, the Registration Agreements and such other agreements, instruments
and documents, (ii) the due authorization, execution and delivery by such other
parties of the Purchase Agreement, the Registration Agreements and such other
agreements, instruments and documents and (iii) that the Purchase Agreement, the
Registration Agreements and such other agreements, instruments and documents
constitute legal, valid and binding obligations of each such other party,
enforceable against such other party in accordance with their respective terms.
As used herein, any reference to "our knowledge" or words of similar
import, except as otherwise specifically described, means the actual awareness
of the existence or absence of any facts or other information by any lawyer who
has participated directly in the specific transactions which are the subject of
this opinion or who is primarily responsible for a particular subject matter to
which this opinion relates.
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We have also investigated such questions of law, including, without
limitation, Regulation D ("Regulation D") promulgated under the Securities Act
of 1933, as amended (the "Securities Act"), and examined such additional
corporate records of the Company and ATI and such other documents and public
records as we have deemed necessary or appropriate to render the opinions
contained herein.
Based upon and subject to the foregoing, we are of the opinion that:
1. ATI is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts. ATI has full
corporate power and authority to enter into, deliver, and perform its
obligations and undertakings under the Purchase Agreement, the ATI Registration
Agreement, the Assignment Agreement and the Services Agreement ATI has no
subsidiaries. ATI 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 of ATI. ATI has full corporate power and authority to carry on its
business as described in the Company's Annual Report on Form 10-K for its fiscal
year ended June 30, 1996 (the "Form 10-K").
2. ATI's entire authorized capital stock consists of: 35,000,000 shares of
ATI Common Stock, and 18,125 shares of ATI Preferred Stock, of which 7,000
shares have been designated Class A Stock and of which 11,125 shares have been
designated Series B Convertible Preferred Stock pursuant to the Certificate of
Vote. To our knowledge, all of ATI's outstanding shares of ATI Common Stock and
ATI Preferred Stock are listed on SCHEDULE 3.2 to the Purchase Agreement. None
of the Preferred Shares are outstanding. The ATI Common Stock, the Class A Stock
and the Preferred Shares have the preferences, voting powers, qualifications,
and special or relative rights or privileges set forth in ATI's Restated
Articles of Organization and the Certificate of Vote. To our knowledge, other
than as indicated on SCHEDULE 3.2 , ATI 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 ATI has not given
any person any right to acquire from ATI or sell to ATI any shares of its
capital stock. To our knowledge, except as set forth on SCHEDULE 3.2, there are
no voting trust, proxies, or other agreements or understandings with respect to
the voting of the capital stock of ATI.
3. The execution and delivery by ATI of the Purchase Agreement, the ATI
Registration Agreement, the Assignment Agreement and the Services Agreement, and
the performance by ATI of its obligations thereunder, and the issue and sale of
the Preferred Shares and ATI Common Shares, have been duly authorized and
approved by all necessary corporate action on the part of ATI. The Purchase
Agreement, the ATI Registration Agreement, the Assignment Agreement and the
Services Agreement have been duly executed and delivered by ATI and constitute
the valid and binding obligations of ATI, enforceable in accordance with their
respective terms; except as such enforceability may be limited by applicable
bankruptcy,
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insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally, the enforcement of creditors' rights and remedies or by
other equitable principles of general application, and subject to the limitation
that the indemnification and contribution provisions of the ATI Registration
Agreement may be unenforceable as a matter of public policy. The execution and
delivery by ATI of the Purchase Agreement, the ATI Registration Agreement, the
Assignment Agreement and the Services Agreement, the performance by ATI of its
obligations thereunder, and the issuance and sale of the Preferred Shares and
the ATI Common 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 ATI, or (ii) to our knowledge, 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, contract, license, lease, instrument,
covenant or other restriction or arrangement to which ATI is a party or by which
it or any of its properties or assets is bound of which we are aware.
4. Except for filings, consents, permits, approvals and authorizations
which will be obtained by ATI prior to the Initial Closing or the Subsequent
Closing, as applicable, and which are set forth in SCHEDULE 3.4 to the Purchase
Agreement, 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 Purchase Agreement, the ATI Registration Agreement, the
Assignment Agreement and the Services Agreement, or the offer, issue, sale or
delivery of the Preferred Shares or ATI Common Shares pursuant to the Purchase
Agreement or the consummation of any other transactions contemplated thereby.
5. When issued and delivered against payment therefor in accordance with
the terms and conditions of the Purchase Agreement and the Certificate of Vote,
the Preferred Shares and ATI Common 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
ATI Common Shares, except as set forth in the Purchase Agreement.
6. 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 the Purchase Agreement, the ImmunoGen
Registration Agreement, the Assignment Agreement and the Services 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.
7. The Company's entire authorized capital stock consists of: 30,000,000
shares of ImmunoGen Common Stock, and 5,000,000 shares of ImmunoGen Preferred
Stock. All of the
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Company's outstanding shares of ImmunoGen Common Stock and ImmunoGen Preferred
Stock are listed on SCHEDULE 4.2, 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. To our knowledge, other than as indicated on SCHEDULE
4.2 to the Purchase Agreement or in the SEC Reports, 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. To our
knowledge, there are no voting trusts, proxies, or other agreements or
understandings with respect to the voting of the capital stock of the Company.
8. The execution and delivery by the Company of the Purchase Agreement, the
ImmunoGen Registration Agreement, the Assignment Agreement and the Services
Agreement, and the performance by the Company of its obligations thereunder, and
the issue, sale and delivery of the ImmunoGen Warrants and the Warrant Shares
have been duly authorized and approved by all necessary corporate action on the
part of the Company, except for stockholder approval of an increase in the
authorized number of shares of ImmunoGen Common Stock as contemplated by Section
8.1 of the Purchase Agreement. The Purchase Agreement, the ImmunoGen
Registration Agreement, the Assignment Agreement and the Services Agreement,
have been duly executed and delivered by the Company and constitute valid and
binding obligations of the Company, enforceable in accordance with their
respective terms; except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors' rights and
remedies or by other equitable principles of general application, and subject to
the limitation that the indemnification and contribution provisions of the
ImmunoGen Registration Agreement may be unenforceable as a matter of public
policy. The execution and delivery by the Company of the Purchase Agreement, the
ImmunoGen Registration Agreement, the Assignment Agreement and the Services
Agreement, and the performance by the Company of its obligations thereunder, and
the issuance, sale and delivery of the ImmunoGen 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 except that the Company does not have sufficient
authorized ImmunoGen Common Stock to reserve for issuance or to issue the
Warrant Shares, and (ii) to our knowledge, 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 arrangement
to which the Company is a party or by which it or any of its properties or
assets is bound of which we are aware.
9. Except for filings, consents, permits, approvals and authorizations
which will be obtained by the Company prior to the Initial Closing or the
Subsequent Closing, as applicable, and which are set forth in SCHEDULE 4.4 and
approval by the Company's stockholders of an increase in
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the Company's authorized Common Stock, 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 Purchase Agreement and the ImmunoGen
Registration Agreement or the offer, issue, sale or delivery of the ImmunoGen
Warrants and the Warrant Shares pursuant to the Purchase Agreement or the
consummation of any other transactions contemplated thereby.
10. When issued and delivered against payment therefor in accordance with
the terms and conditions of the Purchase Agreement and the form of warrant
certificate appended as EXHIBIT A thereto, the ImmunoGen Warrants and the
Warrant Shares shall be (i) duly authorized and validly issued, fully paid and
non-assessable, except that, as of the date of the Initial Closing, the Company
does not have sufficient authorized ImmunoGen Common Stock to reserve for
issuance or to issue the Warrant Shares and except as otherwise described on
SCHEDULE 4.2 to the Purchase Agreement, 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 Warrant
Shares, except as set forth in the Purchase Agreement or EXHIBIT A thereto.
11. Based upon and assuming the accuracy of the representations and
warranties of the Purchaser set forth in Section 5.2 of the Purchase Agreement,
the offer, issuance and sale of the Preferred Shares and the ImmunoGen Warrants
and the offer of the ATI Common Shares issuable upon conversion of the Preferred
Shares and the Warrant Shares issuable upon exercise of the ImmunoGen Warrant
pursuant to the Purchase Agreement, the Certificate of Vote and the ImmunoGen
Warrants are exempt from the registration requirements of the Securities Act by
reason of Regulation D promulgated thereunder.
Our examination of law relevant to the matters covered by this opinion is
limited to the laws of the Commonwealth of Massachusetts and federal law of the
United States and we express no opinion as to the effect on the matters covered
by this opinion of the laws of any other jurisdiction. To the extent that the
governing law with respect to any matters covered by this opinion is the law of
a jurisdiction other than the Commonwealth of Massachusetts or federal law, we
have assumed that the law of such other jurisdiction is identical to
Massachusetts law. In furnishing the opinion regarding the valid existence and
good standing of the Company and ATI, we have relied solely upon good standing
certificates issued by the Secretary of State of Massachusetts on July 30, 1997.
This opinion is given as of the date hereof, and we assume no obligation to
update or supplement this opinion to reflect any facts or circumstances which
may hereafter come to our
Very truly yours,
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY and POPEO, P.C.
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EXHIBIT D
FORM OF ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT
This Agreement made as of this 31st day of July, 1997 between Apoptosis
Technology, Inc., a Massachusetts corporation with its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("ATI") and ImmunoGen, Inc.,
a Massachusetts corporation with its principal place of business at 000
Xxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("ImmunoGen");
WHEREAS, ImmunoGen has entered into Proprietary Information and Invention
Agreements with its employees assigning to ImmunoGen all right, title and
interest to all Proprietary Information, any inventions or other intellectual
property created by employees of ImmunoGen during the course of their
employment; and
WHEREAS, some of the research and work conducted by ImmunoGen employees has
included work on ATI Screens and may have contributed to ATI Patent Rights and
ATI Technology (as those terms are defined in the License Agreement between ATI
and BioChem Therapeutic, Inc. and Research Collaboration Agreement between ATI
and BioChem Pharma Inc, Tanaud Holdings (Barbados) Ltd. and Tanaud L.L.C., both
effective July 31, 1997) (hereinafter collectively referred to as "ATI
Intellectual Property Rights"); and
WHEREAS, ImmunoGen wishes to transfer and assign all of these ATI
Intellectual Property Rights to ATI;
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NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ATI and ImmunoGen hereby agree as follows:
ImmunoGen hereby assigns and transfers to ATI all of ImmunoGen's right,
title and interest to the ATI Intellectual Property Rights including the
employee's obligation to assist ImmunoGen in obtaining and enforcing patents for
such Rights
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly-authorized representatives as of the date first set
above.
IMMUNOGEN, INC.
By:__________________________
Name:
Title:
APOPTOSIS TECHNOLOGY, INC.
By:__________________________
Name:
Title:
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EXHIBIT E
FORM OF SERVICES AGREEMENT
SERVICES & MANAGEMENT AGREEMENT
This Agreement made as of this 31st day of July, 1997 between Apoptosis
Technology, Inc., a Massachusetts corporation with its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("ATI") and ImmunoGen, Inc.,
a Massachusetts corporation with its principal place of business at 000
Xxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("ImmunoGen");
WHEREAS, ATI has entered into a Research Collaboration Agreement with
BioChem Therapeutic Inc. and License Agreement with BioChem Pharma, Inc., Tanaud
Holdings (Barbados) Ltd. and Tanaud L.L.C. ("hereinafter BioChem Agreements") as
of this 31st of July, 1997 whereby BioChem will be utilizing screens developed
by ATI to screen compounds and to discover, develop, manufacture and sell
therapeutic products for the diagnosis, treatment or prevention of cancer in
humans;
WHEREAS, some of the work and research to be performed by ATI employees
will require the use of equipment and facilities either owned solely by
ImmunoGen or jointly owned by ATI and ImmunoGen; and
WHEREAS, ImmunoGen is the controlling shareholder of ATI and will derive
benefits from the successful completion of the work and research described in
the BioChem Agreements;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ATI and ImmunoGen hereby agree as follows:
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1. In order to enable ATI to perform the research and work described in the
BioChem Agreements, ImmunoGen hereby assigns and transfers to ATI all rights,
titles and interest to the equipment and property listed on the attached
Schedule 1.
2. ImmunoGen hereby agrees to provide services to ATI and its employees to
enable them to perform the research and work described in the BioChem Agreements
and to permit ATI to utilize equipment, supplies and facilities either owned
solely by ImmunoGen or owned jointly by ImmunoGen and ATI to enable ATI
employees to conduct the research and work described in the BioChem Agreements.
ATI hereby agrees to reimburse ImmunoGen at cost for costs incurred by ATI for
ATI projects which are paid by ImmunoGen.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly-authorized representatives as of the date first set
above.
IMMUNOGEN, INC.
By:__________________________
Name:
Title:
APOPTOSIS TECHNOLOGY, INC.
By:__________________________
Name:
Title:
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EXHIBIT F
FORM OF PROPRIETY INFORMATION AND INVENTIONS AGREEMENT
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EXHIBIT G
FORM OF REGISTRATION AGREEMENTS
Filed as Exhibits 10.35 and 10.36 to the Registrant's Annual Report on Form 10-K
for its fiscal year ended June 30, 1997.
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