Form for Executive Officers
Acceleration of Vesting upon a Change of Control)
STOCK OPTION AGREEMENT
made as of the day of 200 ,
between ImmunoGen, Inc. (the “Company”), a Massachusetts corporation, and ,
an employee of the Company (the “Employee”).
the Company desires to grant to the Employee an Option to purchase shares of
its common stock, $.01 par value per share (the “Shares”), under and for the
purposes set forth in the Company’s 2006 Employee, Director and Consultant
Equity Incentive Plan (the “Plan”);
the Company and the Employee understand and agree that any terms used and not
defined herein have the same meanings as in the Plan; and
the Company and the Employee each intend that the Option granted herein qualify
as an ISO.
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto agree as follows:
The Company hereby grants
to the Employee the right and option to purchase all or any part of an
Shares, on the terms and conditions and subject to all the limitations set
forth herein, under United States securities and tax laws, and in the Plan,
which is incorporated herein by reference.
The Employee acknowledges receipt of a copy of the Plan.
purchase price of the Shares covered by the Option shall be $
per Share, subject to adjustment, as provided in the Plan, in the event of a
stock split, reverse stock split or other events affecting the holders of
Shares after the date hereof (the “Purchase Price”). Payment shall be made in accordance with
Paragraph 9 of the Plan.
3. EXERCISABILITY OF OPTION.
to the terms and conditions set forth in this Agreement and the Plan, the
Option granted hereby shall become exercisable as follows:
On the first anniversary of
the date of this Agreement
On the second anniversary of the date of this
On the third anniversary of the date of this
On the fourth anniversary of the date of this
foregoing, in the event of a Change of Control (as defined in the Plan) all of
the Shares which are not then vested under this Option shall become fully
vested and immediately exercisable as of the date of the Change of Control
including, but not limited to, pursuant to a Corporate Transaction that also
constitutes a Change of Control pursuant to Section 24(b) of the Plan unless
this Option prior to the date of the Change of Control has expired or been
terminated pursuant to its terms or the terms of the Plan.
foregoing rights are cumulative and are subject to the other terms and
conditions of this Agreement and the Plan.
Option shall terminate ten years from the date of this Agreement or, if the
Employee owns as of the date hereof more than 10% of the total combined voting
power of all classes of capital stock of the Company or an Affiliate, five
years from the date of this Agreement, but shall be subject to earlier
termination as provided herein or in the Plan.
the Employee ceases to be an employee of the Company or of an Affiliate (for
any reason other than the death or Disability of the Employee or termination of
the Employee’s employment for Cause (as defined in the Plan)), the Option may
be exercised, if it has not previously terminated, within three months after
the date the Employee ceases to be an employee of the Company or an Affiliate,
or within the originally prescribed term of the Option, whichever is earlier,
but may not be exercised thereafter. In
such event, the Option shall be exercisable only to the extent that the Option
has become exercisable and is in effect at the date of such cessation of
the foregoing, in the event of the Employee’s Disability or death within three
months after the termination of employment, the Employee or the Employee’s
may exercise the
Option within one year after the date of the Employee’s termination of
employment, but in no event after the date of expiration of the term of the
the event the Employee’s employment is terminated by the Employee’s employer
for Cause (as defined in the Plan), the Employee’s right to exercise any
unexercised portion of this Option shall cease immediately as of the time the
Employee is notified his or her employment is terminated for Cause, and this
Option shall thereupon terminate.
Notwithstanding anything herein to the contrary, if subsequent to the
Employee’s termination as an employee, but prior to the exercise of the Option,
the Board of Directors of the Company determines that, either prior or
subsequent to the Employee’s termination, the Employee engaged in conduct which
would constitute Cause, then the Employee shall immediately cease to have any
right to exercise the Option and this Option shall thereupon terminate.
the event of the Disability of the Employee, as determined in accordance with
the Plan, the Option shall be exercisable within one year after the Employee’s
termination of employment or, if earlier, within the term originally prescribed
by the Option. In such event, the Option
shall be exercisable:
the extent that the Option has become exercisable but has not been exercised as
of the date of Disability; and
the event rights to exercise the Option accrue periodically, to the extent of a
pro rata portion through the date of Disability of any additional vesting
rights that would have accrued on the next vesting date had the Employee not
become Disabled. The proration shall be
based upon the number of days accrued in the current vesting period prior to
the date of Disability.
the event of the death of the Employee while an employee of the Company or of
an Affiliate, the Option shall be exercisable by the Employee’s Survivors
within one year after the date of death of the Employee or, if earlier, within
the originally prescribed term of the Option.
In such event, the Option shall be exercisable:
the extent that the Option has become exercisable but has not been exercised as
of the date of death; and
the event rights to exercise the Option accrue periodically, to the extent of a
pro rata portion through the date of death of any additional vesting rights
that would have accrued on the next vesting date had the Employee not died. The proration shall be based upon the number
of days accrued in the current vesting period prior to the Employee’s date of
OF EXERCISING OPTION.
to the terms and conditions of this Agreement, the Option may be exercised by written
notice to the Company or its designee, in substantially the form of Exhibit A
hereto. Such notice shall state the number of Shares
with respect to which the Option is being exercised and shall be signed by the
person exercising the Option. Payment of
the purchase price for such Shares shall be made in accordance with Paragraph 9
of the Plan. The Company shall deliver
such Shares as soon as practicable after the notice shall be received,
provided, however, that the Company may delay issuance of such Shares until
completion of any action or obtaining of any consent, which the Company deems
necessary under any applicable law (including, without limitation, state
securities or “blue sky” laws). The
Shares as to which the Option shall have been so exercised shall be registered
in the Company’s share register in the name of the person so exercising the
Option (or, if the Option shall be exercised by the Employee and if the
Employee shall so request in the notice exercising the Option, shall be
registered in the name of the Employee and another person jointly, with right
of survivorship) and shall be delivered as provided above to or upon the
written order of the person exercising the Option. In the event the Option shall be exercised,
pursuant to Section 4 hereof, by any person other than the Employee, such
notice shall be accompanied by appropriate proof of the right of such person to
exercise the Option. All Shares that
shall be purchased upon the exercise of the Option as provided herein shall be
fully paid and nonassessable.
of this Option to the extent above stated may be made in part at any time and
from time to time within the above limits, except that no fractional share
shall be issued pursuant to this Option.
Option shall not be transferable by the Employee otherwise than by will or by
the laws of descent and distribution.
The Option shall be exercisable, during the Employee’s lifetime, only by
the Employee (or, in the event of legal incapacity or incompetency, by the
Employee’s guardian or representative) and shall not be assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall
not be subject to execution, attachment or similar process. Any attempted transfer, assignment, pledge,
hypothecation or other disposition of the Option or of any rights granted
hereunder contrary to the provisions of this Section 7, or the levy of any
attachment or similar process upon the Option shall be null and void.
RIGHTS AS STOCKHOLDER UNTIL EXERCISE.
Employee shall have no rights as a stockholder with respect to Shares subject
to this Agreement until registration of the Shares in the Company’s share
register in the name of the Employee.
Except as is expressly provided in the Plan with respect to certain
changes in the capitalization of the Company, no adjustment shall be made for
dividends or similar rights for which the record date is prior to the date of
Plan contains provisions covering the treatment of Options in a number of
contingencies such as stock splits and mergers.
Provisions in the Plan for adjustment with respect to stock subject to
Options and the related provisions with respect to successors to the business
of the Company are hereby made applicable hereunder and are incorporated herein
Employee acknowledges that any income or other taxes due from him or her with
respect to this Option or the Shares issuable pursuant to this Option shall be
the Employee’s responsibility.
the event of a Disqualifying Disposition (as defined in Section 15 below) or if
the Option is converted into a Non-Qualified Option and such Non-Qualified
Option is exercised, the Company may withhold from the Employee’s remuneration,
if any, the minimum statutory amount of federal, state and local withholding
taxes attributable to such amount that is considered compensation includable in
such person’s gross income. At the
Company’s discretion, the amount required to be withheld may be withheld in
cash from such remuneration, or in kind from the Shares otherwise deliverable
to the Employee on exercise of the Option.
The Employee further agrees that, if the Company does not withhold an
amount from the Employee’s remuneration sufficient to satisfy the Company’s
income tax withholding obligation, the Employee will reimburse the Company on
demand, in cash, for the amount under-withheld.
the offering and sale of the Shares to be issued upon the particular exercise
of the Option shall have been effectively registered under the Securities Act
of 1933, as now in force or hereafter amended (the “1933 Act”), the Company
shall be under no obligation to issue the Shares covered by such exercise
unless and until the following conditions have been fulfilled:
person(s) who exercise the Option shall warrant to the Company, at the time of
such exercise, that such person(s) are acquiring such Shares for their own
respective accounts, for investment, and not with a view to, or for sale in
connection with, the distribution of any such Shares, in which event the
person(s) acquiring such Shares shall be bound by the provisions of the
following legend which shall be endorsed upon the certificate(s) evidencing the
Shares issued pursuant to such exercise:
“The shares represented by this certificate have been
taken for investment and they may not be sold or otherwise transferred by any
person, including a pledgee, unless (1) either (a) a Registration Statement
with respect to such shares shall be effective under the Securities Act of
1933, as amended, or (b) the Company shall have 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;” and
the Company so requires, the Company shall have received an opinion of its
counsel that the Shares may be issued upon such particular exercise in compliance
with the 1933 Act without registration thereunder. Without limiting the generality of the
foregoing, the Company may delay issuance of the Shares until completion of any
action or obtaining of any consent, which the Company deems necessary under any
applicable law (including without limitation state securities or “blue sky”
ON TRANSFER OF SHARES.
Employee agrees that in the event the Company proposes to offer for sale to the
public any of its equity securities and such Employee is requested by the
Company and any underwriter engaged by the Company in connection with such
offering to sign an agreement restricting the sale or other transfer of Shares,
then it will promptly sign such agreement and will not transfer, whether in
privately negotiated transactions or to the public in open market transactions
or otherwise, any Shares or other securities of the Company held by him or her
during such period as is determined by the Company and the underwriters, not to
exceed 90 days following the closing of the offering, plus such additional
period of time as may be required to comply with Marketplace Rule 2711 of the
National Association of Securities Dealers, Inc. or similar rules thereto (such
period, the “Lock-Up Period”). Such
agreement shall be in writing and in form and substance reasonably satisfactory
to the Company and such underwriter and pursuant to customary and prevailing
terms and conditions. Notwithstanding
whether the Employee has signed such an agreement, the Company may impose
stop-transfer instructions with respect to the Shares or other securities of
the Company subject to the foregoing restrictions until the end of the Lock-Up
12.2 The Employee acknowledges and agrees
that neither the Company, its shareholders nor its directors and officers, has
any duty or obligation to disclose to the Employee any material information
regarding the business of the Company or affecting the value of the Shares
before, at the time of, or following a termination of the employment of the
Employee by the Company, including, without limitation, any information
concerning plans for the Company to make a public offering of its securities or
to be acquired by or merged with or into another firm or entity.
OBLIGATION TO EMPLOY.
Company is not by the Plan or this Option obligated to continue the Employee as
an employee of the Company or an Affiliate.
The Employee acknowledges: (i)
that the Plan is discretionary in nature and may be suspended or terminated by
the Company at any time; (ii) that the grant of the Option is a one-time
benefit which does not create any contractual or other right to receive future
grants of options, or benefits in lieu of options; (iii) that all
determinations with respect to any such future grants, including, but not
limited to, the times when options shall be granted, the number of shares
subject to each option, the option price, and the time or times when each
option shall be exercisable, will be at the sole discretion of the Company; (iv)
that the Employee’s participation in the Plan is voluntary; (v) that the value
of the Option is an
of compensation which is outside the scope of the Employee’s employment
contract, if any; and (vi) that the Option is not part of normal or expected
compensation for purposes of calculating any severance, resignation,
redundancy, end of service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments.
IS INTENDED TO BE AN ISO.
parties each intend that the Option be an ISO so that the Employee (or the
Employee’s Survivors) may qualify for the favorable tax treatment provided to
holders of Options that meet the standards of Section 422 of the Code. Any provision of this Agreement or the Plan
which conflicts with the Code so that this Option would not be deemed an ISO is
null and void and any ambiguities shall be resolved so that the Option
qualifies as an ISO. Nonetheless, if the
Option is determined not to be an ISO, the Employee understands that neither
the Company nor any Affiliate is responsible to compensate him or her or
otherwise make up for the treatment of the Option as a Non-qualified
Option and not as an ISO. The Employee
should consult with the Employee’s own tax advisors regarding the tax effects
of the Option and the requirements necessary to obtain favorable tax treatment
under Section 422 of the Code, including, but not limited to, holding period
TO COMPANY OF DISQUALIFYING DISPOSITION.
Employee agrees to notify the Company in writing immediately after the Employee
makes a Disqualifying Disposition of any of the Shares acquired pursuant to the
exercise of the Option. A Disqualifying
Disposition is defined in Section 424(c) of the Code and includes any
disposition (including any sale) of such Shares before the later of (a) two
years after the date the Employee was granted the Option or (b) one year after
the date the Employee acquired Shares by exercising the Option, except as
otherwise provided in Section 424(c) of the Code. If the Employee has died before the Shares
are sold, these holding period requirements do not apply and no Disqualifying
Disposition can occur thereafter.
notices required or permitted by the terms of this Agreement or the Plan shall
be given by recognized courier service, facsimile, registered or certified
mail, return receipt requested, addressed as follows:
If to the Company:
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Employee:
or to such other
address or addresses of which notice in the same manner has previously been
given. Any such notice shall be deemed
to have been given upon the earlier of receipt, one business day following
delivery to a recognized courier service or three business days following
mailing by registered or certified mail.
Agreement shall be construed and enforced in accordance with the law of the
Commonwealth of Massachusetts, without giving effect to the conflict of law
Subject to the
provisions of the Plan and the other provisions hereof, this Agreement shall be
for the benefit of and shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties hereto.
Agreement, together with the Plan, 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 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,
provided, however, in any event, this Agreement shall be subject to and
governed by the Plan.
terms and provisions of this Agreement may be modified or amended as provided
in the Plan.
as provided in the Plan, the terms and provisions of this Agreement may be
waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. 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.
22. DATA PRIVACY.
entering into this Agreement, the Employee:
(i) authorizes the Company and each Affiliate, and any agent of the
Company or any Affiliate administering the Plan or providing
services, to disclose to the Company or any of its Affiliates such information
and data as the Company or any such Affiliate shall request in order to
facilitate the grant of options and the administration of the Plan; (ii) waives
any data privacy rights he or she may have with respect to such information;
and (iii) authorizes the Company and each Affiliate to store and transmit such
information in electronic form.
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IN WITNESS WHEREOF, the
Company has caused this Agreement to be executed by its duly authorized
officer, and the Employee has hereunto set his or her hand, all as of the day
and year first above written.