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EXHIBIT 99.1
STOCKHOLDERS' AGREEMENT
This Agreement made as of this 11th day of January, 1993, by and among
ImmunoGen, Inc., a Massachusetts corporation with its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("IMMUNOGEN"),
Xxxx-Xxxxxx Cancer Institute, Inc., a Massachusetts non-profit corporation with
its principal place of business at 00 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("DFCI"), Xx. Xxxxxx Xxxxxxxxxx, a Massachusetts resident residing at Xxx Xxx
Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 ("SCHLOSSMAN"; Schlossman and DFCI are
collectively referred to herein as the "STOCKHOLDERS" and individually as a
"STOCKHOLDER"), and Apoptosis Technology, Inc., a Massachusetts corporation with
its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
02139("ATI").
WHEREAS, ImmunoGen owns 7,000 shares of $.01 par value Class A Preferred
Stock (the "PREFERRED STOCK") of ATI and each of the Stockholders presently owns
1,000 shares of $.01 par value Common Stock (the "COMMON STOCK") of ATI; and
WHEREAS, the purpose of this Agreement is to provide a mechanism to
enable the Stockholders to realize the value of their ownership interest in ATI
through certain liquidity arrangements and to place certain restrictions upon
all of the present and future shares of the Common Stock of ATI held or to be
held by the Stockholders.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties, intending to be legally
bound, agree as follows:
SECTION 1. DEFINITIONS.
(A) "Additional Stockholder Shares" -- Any issued and outstanding
shares of any class of equity securities of ATI, acquired by any of the
Stockholders after the date hereof.
(B) "Closing Date" -- The date on which the closing shall take place
on the sale and purchase of any Stockholder Shares (as defined below) pursuant
to this Agreement.
(C) "Stockholder Shares" -- All of the issued and outstanding shares of
Common Stock of ATI owned by any of the Stockholders as of the date hereof.
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SECTION 2. GENERAL RESTRICTIONS ON TRANSFER OR OTHER DISPOSITION OF THE
STOCKHOLDER SHARES.
(A) GENERAL RESTRICTIONS. No Stockholder shall sell, transfer, assign
or otherwise dispose of, pledge, hypothecate or otherwise encumber any of the
Stockholder Shares or Additional Stockholder Shares, whether voluntarily or by
operation of law, except as provided in this Agreement. Any purported sale,
transfer, assignment or other disposition or pledge, hypothecation or other
encumbrance in violation of this Agreement shall be void and ineffectual and
shall not operate to transfer any interest or title. All stock certificates for
any Stockholder Shares or Additional Stockholder Shares held by or to be
hereafter issued to any of the Stockholders shall contain a restrictive
endorsement subjecting the transfer, assignment or other disposition, or the
pledge, hypothecation or other encumbrance, of the Stockholder Shares and
Additional Stockholder Shares thereby represented to the terms and conditions of
this Agreement and each of the Stockholders shall surrender to ATI at the time
of execution of this Agreement all stock certificates for Stockholder Shares for
the purpose of placing such a legend on such certificates. In the event any
Stockholder shall fail to deliver to ImmunoGen any stock certificate
representing shares which such Stockholder is obligated to transfer to ImmunoGen
pursuant to the terms of this Agreement, then, upon deposit in a separate
account, which need not bear interest, of the purchase price for such shares as
determined in accordance with the terms of this Agreement, ATI shall be entitled
to treat such shares as transferred in accordance with the terms of this
Agreement, to treat such transferee as the owner of such shares for all purposes
and to deem cancelled the certificate or certificates issued in the name of such
Stockholder for such shares. The purchase price so deposited shall be paid to
such Stockholder from such account upon surrender by such Stockholder of the
certificate or certificates representing such shares. ATI shall not be required
to transfer any Stockholder Shares or Additional Stockholder Shares which shall
have been purportedly sold or transferred in violation of this Agreement or to
treat as the owner of such Stockholder Shares or Additional Stockholder Shares,
whether for purposes of voting such Stockholder Shares or Additional Stockholder
Shares, receiving any dividends or other distributions or for any other purpose,
any such purported transferee.
(B) PERMITTED TRANSFERS TO FAMILY. Nothing herein shall preclude the
gift of any of the Stockholder Shares or Additional Stockholder Shares held by
any Stockholder to his or her spouse, child, stepchild, grandchild, parent or
sibling, or legal dependent or to a trust of which the beneficiary or
beneficiaries of the corpus and the income shall be either such a
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person or the Stockholder (a "Familial Transfer"). In any such case, applicable
references in this Agreement to a Stockholder shall be deemed to include each
permitted transferee of a Stockholder pursuant to a Familial Transfer, and in
each such case as a condition of such transfer, each recipient of such
Stockholder Shares or Additional Stockholder Shares shall be required to execute
a written instrument agreeing to be bound by the terms and provisions of this
Agreement in the same manner as the transferor of such Stockholder Shares or
Additional Stockholder Shares.
SECTION 3. RIGHT OF FIRST REFUSAL TO PURCHASE STOCKHOLDER SHARES AND
ADDITIONAL STOCKHOLDER SHARES.
(A) In the event that any Stockholder wishes to dispose of all or any
portion of his, her or its Stockholder Shares or Additional Stockholder Shares
(other than pursuant to a Familial Transfer) (the "Offered Shares"), such
Stockholder shall not offer any of such Stockholder Shares or Additional
Stockholder Shares to a third party unless and until such Stockholder shall have
complied with the provisions of this Subsection (A). Such Stockholder shall
first offer the Offered Shares for sale to ImmunoGen in a written notice to
ImmunoGen, whereupon such Stockholder and ImmunoGen shall enter into good faith
negotiations to determine the purchase price for the Offered Shares. If within
thirty (30) days of such notice, the selling Stockholder and ImmunoGen have not
reached agreement on the purchase price, then the selling Stockholder shall be
free to offer the Offered Shares to a third party, provided the Stockholder
complies with the provisions of Subsections (B), (C) and (D) below.
(B) In the event that any Stockholder wishes to dispose of all or any
portion of his or her Stockholder Shares or Additional Stockholder Shares (other
than pursuant to a Familial Transfer) and such Stockholder shall have complied
with Subsection (A) above, then such Stockholder may offer the Offered Shares to
a third party, subject to the provisions of this Subsection (B) and Subsections
(C) and (D) below. Upon the receipt by the selling Stockholder of a bona fide
written offer from a third party, the selling Stockholder shall simultaneously
notify ImmunoGen and ATI of the identities of the proposed purchaser or
purchasers, the number of Offered Shares and a copy of such written offer
setting forth the proposed price and terms of sale (the "Offer Notice"). Despite
any revocation of the third party written offer, the selling Stockholder shall,
at the option of ImmunoGen exercised in accordance with Subsection (C) below, be
obligated to sell the Offered Shares to ImmunoGen at the price and on the terms
of the third party written offer,
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subject to compliance with the following provisions. For all purposes of this
Section 3, the "First Refusal Price" shall be the price (and upon the terms)
contained in the Offer Notice, provided, that in the event the consideration to
be paid pursuant to the Offer Notice includes anything other than United States
dollars, at ImmunoGen's option ImmunoGen may substitute United States dollars
equal to the fair value of such other consideration in lieu thereof. Such fair
value shall be conclusively determined in good faith by the Board of Directors
of ATI.
(C) ImmunoGen shall have a right of first refusal to purchase all, but
not less than all, of the Offered Shares at the First Refusal Price. ImmunoGen
shall exercise its right to purchase the Offered Shares by written notice to the
selling Stockholder within thirty (30) days following receipt of the Offer
Notice. The notice from ImmunoGen shall designate the place for closing in the
greater Boston area and the Closing Date, which shall be no later than sixty
(60) days following receipt of the Offer Notice.
(D) If ImmunoGen shall not have notified the selling Stockholder of its
intention to purchase all of the Offered Shares as provided in Subsection (C)
above, then the selling Stockholder shall be permitted during the thirty (30)
days after the first thirty (30) days after the receipt by ImmunoGen of the
Offer Notice to sell all, but not less than all, of the Offered Shares to the
same purchaser or purchasers, at the same price and on the same terms as set
forth in the Offer Notice, provided such purchaser or purchasers execute a
written instrument agreeing to be bound by the terms and provisions of this
Agreement in the same manner as the transferor of such Stockholder Shares;
provided, however, that the purchaser or purchasers shall not have the benefit
of, and shall not be entitled to exercise, the Put Option set forth in Section
4(A). If the selling Stockholder shall have received a notice from ImmunoGen,
but ImmunoGen shall have failed to tender the First Refusal Price on or before
the Closing Date specified in such notice, then the selling Stockholder shall be
permitted, for a period of thirty (30) days after such Closing Date, to sell all
of the Offered Shares to the same purchaser or purchasers, at the same price and
on the same terms as set forth in the Offer Notice, provided such purchaser or
purchasers execute a written instrument agreeing to be bound by the terms and
provisions of this Agreement in the same manner as the transferor of such
Stockholder Shares or Additional Stockholder Shares; provided, however, that the
purchaser or purchasers shall not have the benefit of, and shall not be entitled
to exercise, the Put Option set forth in Section 4(A).
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SECTION 4. RIGHT TO SELL AND PURCHASE SHARES.
(A) PUT OPTION. In the event that, prior to January 11, 1998, ATI
shall not have sold securities to the public in an offering registered under the
Securities Act of 1933, as amended (or successor legislation) in which the total
offering price is at least $5,000,000, then, at any time on or after January 11,
1998 but before January 11, 1999, upon the written request of a Stockholder to
ImmunoGen, said Stockholder shall have the right to sell, and ImmunoGen shall be
obligated to purchase, all but not less than all of the Stockholder Shares owned
by said Stockholder to ImmunoGen (the "Put Option"). The purchase price per
Stockholder Share shall be determined as set forth in Subsection (C) below and
the Closing Date shall be determined in accordance with Subsection (D) below.
(B) CALL OPTION. In the event that, prior to January 11, 1998, ATI
shall not have sold securities to the public in an offering registered under the
Securities Act of 1933, as amended (or successor legislation) in which the total
offering price is at least $5,000,000, then, at any time on or after January 11,
1998 but before January 11, 1999, ImmunoGen shall have the right to purchase,
and each of the Stockholders shall be obligated to sell, all but not less than
all of the Stockholder Shares owned by each Stockholder upon written notice by
ImmunoGen to one or more of such Stockholders (the "Call Option"). The purchase
price per Stockholder Share shall be determined as set forth in Subsection (C)
below and the Closing Date shall be determined in accordance with Subsection (D)
below.
(C) PURCHASE PRICE PER STOCKHOLDER SHARE. The purchase price to be
paid per Stockholder Share upon the exercise of the Put Option or the Call
Option ("Purchase Price") shall be determined as follows:
(1) If the Put Option or the Call Option is exercised at any time on or
after January 11, 1998 but before July 11, 1998, the purchase price per
Stockholder Share shall be $871.93; and
(2) If the Put Option or the Call Option is exercised at any time on or
after July 11, 1998 but before July 11, 1999, the purchase price per Stockholder
Share shall be $980.92.
(D) EXERCISE OF PUT OPTION OR CALL OPTION; CLOSING DATE. The party
exercising the Put Option or the Call Option, as the case may be, shall deliver
written notice of its exercise (an
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"EXERCISE NOTICE"), designating a place for the closing in the greater Boston
area and the Closing Date for such transaction, which Closing Date shall be not
more than sixty (60) days after delivery of such Exercise Notice.
(E) PAYMENT OF PURCHASE PRICE. At ImmunoGen's option, ImmunoGen shall
pay the Purchase Price either (i) by certified or bank check, or (ii) by the
delivery to the Stockholders of shares of ImmunoGen's common stock (the
"Exchanged Shares"). If ImmunoGen opts to pay the Purchase Price by delivery of
Exchanged Shares, the number of Exchanged Shares ImmunoGen shall be obligated to
deliver to each Stockholder at the closing shall be determined by dividing the
Purchase Price due each Stockholder by the average closing price for shares of
ImmunoGen's common stock as reported in the NASDAQ National Market System during
the twenty (20) trading days preceding the Closing Date. (Such average closing
price shall be determined by adding the closing prices for each of such twenty
(20) days and dividing such sum by twenty (20).) ImmunoGen shall not be
obligated to exchange any fractional shares, and to the extent any Stockholder
is due an amount exceeding the value of a whole number of shares of ImmunoGen
common stock, then ImmunoGen shall pay such Stockholder the difference by check.
SECTION 5. BOARD OF DIRECTORS.
The parties hereto agree that within two (2) years of the date of this
Agreement they will cause to be elected to the Board of Directors of ATI one
director who is not an employee of either ImmunoGen or DFCI.
SECTION 6. GENERAL.
(A) DELIVERY OF STOCK CERTIFICATES. At any closing hereunder, the
seller of Stockholder Shares and/or Additional Stockholder Shares shall be
required to deliver certificates for the Stockholder Shares and/or Additional
Stockholder Shares being sold to ImmunoGen with appropriate endorsement or with
separate stock powers and such other documentation as is necessary to vest
ImmunoGen with absolute title to the Stockholder Shares and/or Additional
Stockholder Shares being sold, free and clear of all liens, encumbrances,
charges, liabilities, debts and restrictions; and ImmunoGen shall deliver to the
Stockholder the consideration determined in accordance with this Agreement for
such shares.
(B) ADJUSTMENT PROVISIONS. If ATI shall pay a stock dividend or
declare a stock split on or with respect to any of
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its Common Stock, or otherwise distribute securities of ATI to the holders of
its Common Stock, the number of shares of stock or other securities of ATI
issued with respect to the Stockholder Shares then subject to the Put Option and
the Call Option shall be added to the Stockholder Shares then subject to the Put
Option and the Call Option without any change in the aggregate purchase price
otherwise payable with respect thereto. If ATI shall distribute to its
stockholders shares of stock of another corporation, the shares of stock of such
other corporation distributed with respect to the Stockholder Shares then
subject to the Put Option and the Call Option shall be added to the Stockholder
Shares covered by the Put Option and the Call Option without any change in the
aggregate purchase price otherwise payable with respect thereto.
If the outstanding shares of Common Stock of ATI shall be subdivided into
a greater number of shares or combined into a smaller number of shares, or in
the event of a reclassification of the outstanding shares of Common Stock of
ATI, or if ATI shall be a party to any capital reorganization, there shall be
substituted for the Stockholder Shares then covered by the Put Option and the
Call Option such amount and kind of securities as are issued in such
subdivision, combination, reclassification, or capital reorganization in respect
of the Stockholder Shares subject to the Put Option and the Call Option
immediately prior thereto, without any change in the aggregate purchase price
otherwise payable with respect thereto.
SECTION 7. MISCELLANEOUS.
(A) ENTIRE AGREEMENT. This Agreement represents the entire contract
among the parties relating to the subject matter hereof. No statements,
representations, warranties (express or implied), writings, understandings or
agreements of any party or of any representative of any party which are not set
forth herein relating to such subject matter shall be binding. This Agreement
may not be amended, modified or altered, except by a supplemental writing
executed by the parties hereto which expressly refers to this Agreement.
(B) BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties, their transferees, successors, assigns, estates,
personal and legal representatives, executors, administrators and heirs,
provided that if ImmunoGen shall purchase any shares from any Stockholder,
ImmunoGen shall not succeed to such Stockholder's rights or obligations with
regard to such shares.
(C) GOVERNING LAW. This Agreement shall be governed by the law of the
Commonwealth of Massachusetts.
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(D) NOTICES. Any notice required hereunder shall be deemed to have
been validly given, if sent by certified mail, return receipt requested, postage
prepaid or delivered in hand, or by recognized delivery service providing
evidence of delivery, in the case of ATI, at the following address to the
attention of its President: 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, in the case
of ImmunoGen at the following address to the attention of its President: 000
Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, in the case of DFCI, at the following
address to the attention of its President: 00 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, and in the case of Schlossman, at the following address:
Xxx Xxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, or in any case to such other
address as may be furnished in writing by one party to the other parties hereto.
(E) COUNTERPARTS. This Agreement may be executed in counterparts, all
of which together shall constitute one and the same instrument.
(F) WAIVER. No express or implied waiver by any party of any default
shall be a waiver of any future or subsequent default. The failure or delay of
any party in exercising any rights granted hereunder shall not constitute a
waiver of any such right and any single or partial exercise of any particular
right by any party shall not exhaust the same or constitute a waiver of any
other right hereunder.
(G) CAPTIONS. All section and descriptive headings are inserted for
convenience only, and shall not affect any construction or interpretation
hereof.
(H) SEVERABILITY. If any provision hereof should be held invalid,
illegal or unenforceable in any respect in any jurisdiction, then, to the
fullest extent permitted by law, (a) all other provisions hereof shall remain in
full force and effect in such jurisdiction and shall be liberally construed in
order to carry out the intentions of the parties hereto as nearly as may be
possible and (b) such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
hereby waive any provision of law that would render any provision hereof
prohibited or unenforceable in any respect.
(I) FURTHER INSTRUMENTS AND ASSURANCES. Each of the parties hereto
agrees to duly execute and deliver, or cause to be duly executed and delivered,
such further instruments and do and cause to be done such further acts and
things, including, without limitation, the filing of such additional
assignments, agreements, documents and instruments, that may be necessary or
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as the other party hereto may at any time and from time to time reasonably
request in connection with this Agreement or to carry out more effectively the
provisions and purposes of, or to better assure and confirm unto such other
party its rights and remedies under, this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by
the individual parties and the corporate parties by their authorized officers,
as the act and deed of said parties, on the day and year first hereinabove
written.
IMMUNOGEN, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
APOPTOSIS TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: President
THE STOCKHOLDERS:
XXXX-XXXXXX CANCER INSTITUTE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Ph.D.
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Name: Xxxxxxx X. Xxxxxxx, Ph.D.
Title: Director for Research
Xx. Xxxxxx Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxxx
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Xx. Xxxxxx Xxxxxxxxxx
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