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EXHIBIT 10.35
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of October 16, 1996, by and among ImmunoGen, Inc., a Massachusetts
corporation (the "COMPANY"), and Southbrook International Investments, Ltd., a
British Virgin Islands corporation (the "PURCHASER").
This Agreement is entered into pursuant to the Convertible Preferred Stock
Purchase Agreement, dated as of October 16, 1996, by and among the Company and
the Purchaser (the "PURCHASE AGREEMENT"). The execution of this Agreement is a
condition to the closing of the transactions contemplated by the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
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Capitalized terms used and not otherwise defined herein shall have the
meanings given such terms in the Purchase Agreement. As used in this Agreement,
the following terms shall have the following meanings:
"ADVICE" shall have meaning set forth in SECTION 4(o).
"AFFILIATE" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "CONTROL," when used with
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "AFFILIATED," "CONTROLLING" and "CONTROLLED" have meanings
correlative to the foregoing.
"BLACKOUT" shall have the meaning set forth in SECTION 3(b).
"BUSINESS DAY" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in the state of
New York generally are authorized or required by law or other government actions
to close.
"CLOSING" shall mean the Series B Closing, the Series C Closing, the Series
D Closing, the Series E Closing or the Series F Closing, as applicable.
"CLOSING DATE" shall mean the Series B Closing Date, the Series C Closing
Date, the Series D Closing Date, the Series E Closing Date or the Series F
Closing Date, as applicable.
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"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Company's Common Stock, par value $.01 per share.
"DEFAULT RATE" means, upon the occurrence of an Event, an increase in the
annual dividend rate of the Preferred Stock in question to 18%.
"EFFECTIVENESS DATE" with respect to a Registration Statement means the
80th day following the applicable Closing Date.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in SECTION 2(a).
"EVENT" shall have the meaning set forth in SECTION 5.
"EVENT DATE" shall have the meaning set forth in SECTION 5.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FILING DATE" means, subject to SECTION 4(a), with respect to a
Registration Statement means the 25th day following the applicable Closing Date.
"HOLDER" or "HOLDERS" means the holder or holders, as the case may be, from
time to time, of Registrable Securities.
"INDEMNIFIED PARTY" shall have the meaning set forth in SECTION 7(c).
"INDEMNIFYING PARTY" shall have the meaning set forth in SECTION 7(c).
"INITIAL WARRANT" means the Common Stock purchase Warrant issued to the
Purchaser on the Series B Closing Date.
"LOSSES" shall have the meaning set forth in SECTION 7(a).
"NEW YORK COURTS" shall have the meaning set forth in SECTION 9(i).
"PERSON" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"PREFERRED STOCK" shall mean any of the Series B Preferred, the Series C
Preferred, the Series D Preferred, the Series E Preferred and the Series F
Preferred.
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"PROCEEDING" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included in a Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under to the Securities Act),
as amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities covered by a
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"REGISTRABLE SECURITIES" means, (a) with respect to the Registration
Statement to be filed after the Series B Closing, the Warrant Shares issuable
upon exercise of the Initial Warrant and the shares of Common Stock into which
the Series B Preferred are convertible and the Warrant Shares issuable upon
exercise of the Subsequent Warrant relating to the Series B Preferred; and (b)
with respect to the Registration Statement to be filed after the Series C
Closing, the shares of Common Stock into which the Series C Preferred issued and
sold at such Closing are convertible and the Warrant Shares issuable upon
exercise of the Subsequent Warrant which may be issued in respect of the Series
C Shares; (c) with respect to the Registration Statement to be filed after the
Series D Closing, the shares of Common Stock into which the Series D Preferred
issued and sold at such Closing are convertible and the Warrant Shares issuable
upon exercise of the Subsequent Warrant which may be issued in respect of the
Series D Shares; (d) with respect to the Registration Statement to be filed
after the Series E Closing, the shares of Common Stock into which the Series E
Preferred issued at such Closing are convertible and the Warrant Shares issuable
upon exercise of the Subsequent Warrant which may be issued in respect of the
Series E Shares and (e) with respect to the Registration Statement to be filed
after the Series F Closing, the shares of Common Stock into which the Series F
Preferred issued at such Closing are convertible and the Warrant Shares issuable
upon exercise of the Subsequent Warrant which may be issued in respect of the
Series F Shares; provided, however that in order to account for adjustments in
the conversion ratios, in the case of each of (a), (b), (c), (d) and (e),
Registrable Securities shall include a number of shares of Common Stock equal to
no less than the sum of (1) two times the number of shares of Common Stock into
which the particular series of Preferred Stock are convertible assuming
conversion in full based on the particular Closing Date for such series of
Preferred Stock and (2) the number of Warrant Shares issuable upon exercise of
the Initial Warrant and Subsequent Warrants (assuming such Initial Warrant and
each Subsequent Warrant were issued on the particular Closing Date referred to
in (1) above, or such other number of shares of Common Stock as agreed to by the
parties to the Purchase Agreement. Notwithstanding anything herein contained to
the contrary, if the number of shares of Common Stock into which Preferred Stock
is convertible exceeds twice the number of shares of Common Stock into which the
particular series of Preferred Stock is convertible based upon a computation as
at a particular Closing Date, then the term "Registrable Securities" shall be
deemed to include such additional shares and the Company shall promptly file
appropriate amendments to such
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Registration Statements to evidence such increase in the time contemplated
herein for filing of appropriate amendments in accordance with the terms hereof.
"REGISTRATION STATEMENT" means a registration statement, contemplated by
SECTION 2(a), including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
"RULE 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"RULE 144A" means Rule 144A promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"RULE 158" means Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"RULE 415" means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SERIES B PREFERRED" means the Series B Convertible Preferred Stock of the
Company, par value $.01 per share.
"SERIES C PREFERRED" means the Series C Convertible Preferred Stock of the
Company, par value $.01 per share.
"SERIES D PREFERRED" means the Series D Convertible Preferred Stock of the
Company, par value $.01 per share.
"SERIES E PREFERRED" means the Series E Convertible Preferred Stock of the
Company, par value $.01 per share.
"SERIES F PREFERRED" means the Series F Convertible Preferred Stock of the
Company, par value $.01 per share.
"SPECIAL COUNSEL" means any special counsel to the Holders, for which the
Holders will be reimbursed by the Company pursuant to SECTION 6.
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"SUBSEQUENT WARRANTS" means the Common Stock purchase warrants which may be
issued to the original Holder in accordance with the terms of the Purchase
Agreement and relating to the Series C Preferred, Series D Preferred, Series E
Preferred and Series F Preferred, as applicable.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" means a registration
in connection with which securities of the Company are sold to an underwriter
for reoffering to the public pursuant to an effective registration statement.
"WARRANT SHARES" means the shares of Common Stock issuable upon exercise of
the Initial Warrant and any Subsequent Warrant.
2. Shelf Registration
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(a) On or prior to each Filing Date, the Company shall prepare and file
with the Commission a "shelf" Registration Statement covering all applicable
Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415; PROVIDED, that Registerable Securities covered by such Registration
Statement shall equal no less than the sum of (i) twice the number of shares of
Common Stock issuable upon conversion of such Preferred Stock relating to such
Registration Statement and (ii) the Warrant Shares issuable during such period,
as contemplated in the Purchase Agreement. The Registration Statement shall be
on Form S-3 or another appropriate form permitting registration of Registrable
Securities for resale by the Holders in the manner or manners designated by them
(including, without limitation, public or private sales and one or more
underwritten offerings). The Company shall (i) except as specifically disclosed
in a schedule to the Purchase Agreement, not permit any securities other than
the Registrable Securities to be included in a Registration Statement, and (ii)
use its best efforts to cause the Registration Statement to be declared
effective under the Securities Act as promptly as practicable after the filing
thereof, but in any event prior to the Effectiveness Date, and to keep such
Registration Statement continuously effective under the Securities Act until the
date which is four (4) years after each respective Closing Date or such earlier
date when all Registrable Securities covered by such Registration Statement have
been sold or may be sold without volume or other restrictions pursuant to Rule
144 or Rule 144A, as the case may be, as determined by the counsel to the
Company pursuant to a written opinion letter addressed to the Holders to such
effect (the "EFFECTIVENESS PERIOD"); PROVIDED, HOWEVER, that the Company shall
not be deemed to have used its best efforts to keep the Registration Statement
effective during the Effectiveness Period if it voluntarily takes any action
that would result in the Holders not being able to sell the Registrable
Securities covered by such Registration Statement during the Effectiveness
Period, unless such action is required under applicable law or the Company has
filed a post-effective amendment to the Registration Statement and the
Commission has not declared it effective or except as otherwise permitted by
SECTION 3(a).
(b) If the Holders of a majority of the Registrable Securities so elect, an
offering of Registrable Securities pursuant to a Registration Statement may be
effected in the form of an underwritten offering. In such event, and if the
managing underwriters advise the Company and such Holders in writing that in
their opinion the amount of Registrable Securities proposed to be
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sold in such offering exceeds the amount of Registrable Securities which can be
sold in such offering, there shall be included in such underwritten offering the
amount of such Registrable Securities which in the opinion of such managing
underwriters can be sold, and such amount shall be allocated PRO RATA among the
Holders proposing to sell Registrable Securities in such underwritten offering.
(c) If any of the Registrable Securities are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
of the Registrable Securities included in such offering. In such event, the
Holders shall pay the costs of such underwriters and any counsel they might
retain. No Holder may participate in any underwritten offering hereunder unless
such Person (i) agrees to sell its Registrable Securities on the basis provided
in any underwriting agreements approved by the Persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such arrangements.
3. Hold-Back Agreements
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(a) RESTRICTIONS ON PUBLIC SALE BY THE HOLDERS. Subject to paragraph (b) of
this SECTION 3, the Purchaser hereby understands and agrees that the
registration rights of the Purchaser pursuant to this Agreement and its ability
to offer and sell Registrable Securities pursuant to the Registration Statement
are limited by the provisions of the immediately following sentence. If the
Company determines in its good faith judgment that the filing of a Registration
Statement in accordance with SECTION 2 or the use of any Prospectus would
require the disclosure of material information which the Company has a bona fide
business purpose for preserving as confidential or the disclosure of which would
impede the Company's ability to consummate a significant transaction, upon
written notice of such determination by the Company, the rights of the Purchaser
to offer, sell or distribute any Registrable Securities pursuant to a
Registration Statement or to require the Company to take action with respect to
the registration or sale of any Registrable Securities pursuant to a
Registration Statement (including any action contemplated by SECTION 4) will for
up to 60 days in respect of a single such notice or event or series of related
events in any 12-month period be suspended until the date upon which the Company
notifies the Holders in writing that suspension of such rights for the grounds
set forth in this SECTION 3(a) is no longer necessary.
(b) LIMITATION ON BLACKOUTS. Notwithstanding anything contained herein to
the contrary, the aggregate number of days (whether or not consecutive) during
which the Company may delay the effectiveness of a Registration Statement or
prevent offerings, sales or distributions by the Purchaser pursuant to paragraph
(a) above or the last paragraph of SECTION 4 (collectively, a "BLACKOUT") shall
in no event exceed 90 days during any 12-month period and no Blackout may
continue in consecutive 12 month periods.
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4. Registration Procedures
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In connection with the Company's registration obligations hereunder, the
Company shall:
(a) Prepare and file with the Commission within the time period set forth
in SECTION 2 a Registration Statement on Form S-3 or another appropriate form in
accordance with the method or methods of distribution thereof as specified by
the Holders, and cause the Registration Statement to become effective and remain
effective as provided herein; PROVIDED, HOWEVER, that not less than 5 Business
Days prior to the filing of a Registration Statement or any related Prospectus
or any amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), the Company
shall (i) furnish to the Holders, their Special Counsel and any managing
underwriters, copies of all such documents proposed to be filed, which documents
(other than those incorporated or deemed to be incorporated by reference) will
be subject to the review of such Holders, their Special Counsel and such
managing underwriters, and (ii) cause its officers and directors, counsel and
independent certified public accountants to respond to such inquiries as shall
be necessary, in the opinion of respective counsel to such Holders and such
underwriters, to conduct a reasonable investigation within the meaning of the
Securities Act. The Company shall not file a Registration Statement or any such
Prospectus or any amendments or supplements thereto to which the Holders of a
majority of the applicable Registrable Securities, their Special Counsel, or any
managing underwriters, shall reasonably object on a timely basis.
(b) (i) Prepare and file with the Commission such amendments, including
post-effective amendments, to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable time
period; (ii) cause the related Prospectus to be amended or supplemented by any
required Prospectus supplement, and as so supplemented or amended to be filed
pursuant to Rule 424 (or any similar provisions then in force) promulgated under
the Securities Act; (iii) respond as promptly as practicable to any comments
received from the Commission with respect to a Registration Statement or any
amendment thereto; and (iv) comply with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable Securities
covered by a Registration Statement during the applicable period in accordance
with the intended methods of disposition by the Holders thereof set forth in
each Registration Statement as so amended or in such Prospectus as so
supplemented.
(c) Notify the Holders of Registrable Securities to be sold, their Special
Counsel and any managing underwriters immediately (and, in the case of (i)(A)
below, not less than 5 days prior to such filing) and (if requested by any such
Person) confirm such notice in writing no later than one Business Day following
the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to the Registration Statement is proposed to be filed and, (B) with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the Commission or any other
Federal or state governmental authority for amendments or supplements to the
Registration Statement or Prospectus or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of a
Registration Statement covering any or all of the Registrable Securities or the
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initiation of any Proceedings for that purpose; (iv) if at any time any of the
representations and warranties of the Company contained in any agreement
contemplated hereby ceases to be true and correct in all material respects; (v)
of the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose; and (vi) of the occurrence of any event that makes
any statement made in a Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to a Registration Statement,
Prospectus or other documents so that, in the case of a Registration Statement
or the Prospectus, as the case may be, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Use its best efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order suspending the effectiveness of a Registration
Statement or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(e) If requested by any managing underwriter or the Holders of a majority
of the Registrable Securities to be sold in connection with an underwritten
offering, (i) promptly incorporate in a Prospectus supplement or post-effective
amendment to the Registration Statement such information as such managing
underwriters and such Holders reasonably agree should be included therein and
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; PROVIDED, HOWEVER, that the Company shall not be
required to take any action pursuant to this SECTION 4(e) that would, in the
opinion of counsel for the Company, violate applicable law.
(f) Furnish to each Holder, their Special Counsel and any managing
underwriters, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested by such Person (including
those previously furnished or incorporated by reference) promptly after the
filing of such documents with the Commission.
(g) Promptly deliver to each Holder, their Special Counsel, and any
underwriters, without charge, as many copies of the Prospectus or Prospectuses
(including each form of prospectus) and each amendment or supplement thereto as
such Persons may reasonably request; and the Company hereby consents to the use
of such Prospectus and each amendment or supplement thereto by each of the
selling Holders and any underwriters in connection with the offering and sale of
the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
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(h) Prior to any public offering of Registrable Securities, use its best
efforts to register or qualify, and cooperate with the selling Holders, any
underwriters and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any Holder or underwriter
requests in writing, to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period and to do any and
all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by a Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or subject the Company to any
material tax in any such jurisdiction where it is not then so subject.
(i) At the request of the Holders and any managing underwriters, facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall be free of all restrictive
legends, and to enable such Registrable Securities to be in such denominations
and registered in such names as any such managing underwriters or Holders may
request at least two Business Days prior to any sale of Registerable Securities.
(j) Upon the occurrence of any event contemplated by SECTION 4(c)(vi), as
promptly as practicable, prepare a supplement or amendment, including a
post-effective amendment, to each Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus
will contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(k) Use its best efforts to cause all Registrable Securities relating to
each Registration Statement to be listed on each securities exchange or market,
if any, on which similar securities issued by the Company are then listed.
(l) Enter into such customary agreements, including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings, and take all such other customary actions in connection therewith
(including those reasonably requested by any managing underwriters and the
Holders of a majority of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities, and,
whether or not an underwriting agreement is entered into, (i) immediately prior
to the effectiveness of a Registration Statement, and, in the case of an
underwritten offering, at the time of delivery of any Registrable Securities
sold pursuant thereto, obtain and deliver copies to the Holders and the managing
underwriters, if any, of "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data is, or is required to
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be, included in the Registration Statement), addressed to each selling Holder
and each of the underwriters, if any, in form and substance as are customary in
connection with underwritten offerings; (ii) provide to the underwriters
indemnification no less favorable to the underwriters than those set forth in
SECTION 7 (or such other indemnification as may be acceptable to such
underwriters participating in such underwritten offering), which may be
accomplished by amendment of SECTION 7 to include such underwriters as
Indemnified Parties to the same extent as if they were Holders thereunder;
(m) Make available for inspection by the selling Holders, any
representative of such Holders, any underwriter participating in any disposition
of Registrable Securities, and any attorney or accountant retained by such
selling Holders or underwriters, at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the
officers, directors, agents and employees of the Company and its subsidiaries to
supply all information in each case requested by any such Holder,
representative, underwriter, attorney or accountant in connection with each
Registration Statement; PROVIDED, HOWEVER, that any information that is
determined in good faith by the Company in writing to be of a confidential
nature at the time of delivery of such information shall be kept confidential by
such Persons, unless (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of regulatory
authorities; (ii) disclosure of such information, in the opinion of counsel to
such Person, is required by law; (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure to
safeguard by such Person; or (iv) such information becomes available to such
Person from a source other than the Company and such source is not bound by a
confidentiality agreement.
(n) Comply with all applicable rules and regulations of the Commission and
make generally available to its security holders earning statements satisfying
the provisions of SECTION 11(a) of the Securities Act and Rule 158 not later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registerable Securities are sold to underwriters
in a firm commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of the Registration
Statement, which statement shall cover said 12-month period, or end shorter
periods as is consistent with the requirements of Rule 158.
(o) Provide a CUSIP number for all Registrable Securities, not later than
the effective date of the Registration Statement.
The Company may require each selling Holder to furnish to the Company such
information regarding the distribution of such Registrable Securities as is
required by law to be disclosed in a Registration Statement and the Company may
exclude from such registration the Registrable Securities of any such Holder who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
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If a Registration Statement refers to any Holder by name or otherwise as
the holder of any securities of the Company, then such Holder shall have the
right to require (i) the inclusion therein of language, in form and substance
reasonably satisfactory to such Holder, to the effect that the ownership by such
Holder of such securities is not to be construed as a recommendation by such
Holder of the investment quality of the Company's securities covered thereby and
that such ownership does not imply that such Holder will assist in meeting any
future financial requirements of the Company, or (ii) if such reference to such
Holder by name or otherwise is not required by the Securities Act or any similar
Federal statute then in force, the deletion of the reference to such Holder in
any amendment or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
The Purchaser covenants and agrees that (i) it will not offer or sell any
Registrable Securities under a Registration Statement until it has received
copies of the Prospectus as then amended or supplemented as contemplated in
SECTION 4(g) and notice from the Company that such Registration Statement and
any post-effective amendments thereto have become effective as contemplated by
SECTION 4(c) and (ii) the Purchaser and its officers, directors or Affiliates,
if any, will comply with the prospectus delivery requirements of the Securities
Act as applicable to them in connection with sales of Registrable Securities
pursuant to the Registration Statement.
Each Holder agrees by its acquisition of such Registrable Securities that,
upon receipt of a notice from the Company of the occurrence of any event of the
kind described in SECTION 4(c)(ii), 4(c)(iii), 4(c)(iv), 4(c)(v) or 4(c)(vi),
such Holder will forthwith discontinue disposition of such Registrable
Securities until such Holder's receipt of the copies of the supplemented
Prospectus and/or amended Registration Statement contemplated by SECTION 4(j),
or until it is advised in writing (the "ADVICE") by the Company that the use of
the applicable Prospectus may be resumed, and, in either case, has received
copies of any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus or Registration Statement.
5. LIQUIDATED DAMAGES. The Company acknowledges and agrees that the Holders
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if the Company fails to fulfill its obligations
hereunder and (a) a Registration Statement is not filed with the Commission on
or prior to each Filing Date, (b) a Registration Statement is not declared
effective by the Commission on or prior to each Effectiveness Date or (c) a
Registration Statement is filed and declared effective but thereafter ceases to
be effective at any time during the Effectiveness Period without being succeeded
within 30 days by a subsequent Registration Statement filed with and declared
effective by the Commission (any such failure being hereinafter referred to as
an "EVENT", and for purposes of clauses (a) and (b) the date on which such Event
occurs, or for purposes of clause (c) the date on which such 30-day limit is
exceeded, being hereinafter referred to as an "EVENT DATE").
As further described in the applicable Certificate of Vote of Directors
contemplated in the Purchase Agreement relating to the Conversion Price of each
series of Preferred Stock into which is covered or intended to be covered by a
Registration Statement to which an Event applies shall be reduced by three
percent (3%) per month for each of the first two months after each Event Date
and, commencing on the third month after an Event
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Date, the monthly reduction equal to three percent (3%) of the total purchase
price of such series of Preferred Stock shall be paid to each Holder in cash and
each series of Preferred Stock shall be subject to the Default Rate; PROVIDED,
that such liquidated damages, in each case, will cease to accrue (subject to the
occurrence of another Event) on the date in which the applicable Registration
Statement is no longer subject to an order suspending the effectiveness thereof
or Proceedings relating thereto or a subsequent Shelf Registration covering the
affected series of Preferred Stock, as the case may be, is declared effective.
The Company shall notify each Holder within five days of each Event and
Event Date. The Company shall pay the liquidated damages due with respect to the
Registrable Securities to each Holder of record as at the Event Date on the
first Business Day of each month in which such liquidated damages shall accrue
by check delivered to the address for notice of such Holder set forth herein.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by the Company whether or not a
Registration Statement is filed or becomes effective and whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
National Association of Securities Dealers, Inc. and (B) in compliance with
state securities or Blue Sky laws (including, subject to SECTION 6(b), fees and
disbursements of counsel for the underwriters or Holders in connection with Blue
Sky qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as the managing underwriters, if any, or Holders of a majority of
Registrable Securities may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriters, if any, or by the holders of a majority of the
Registrable Securities included in the Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company and Special Counsel for the Holders (subject to the provisions of
SECTION 6(b)), (v) fees and disbursements of all independent certified public
accountants referred to in SECTION 4(1)(iii) (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance), (vi) Securities Act liability insurance, if the Company so
desires such insurance, and (vii) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of
the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange on which similar securities issued by the Company are then
listed.
13
(b) In connection with each Registration Statement, the Company shall
reimburse the Holders for the reasonable fees and disbursements of one firm of
attorneys chosen by the Holders of a majority of the Registrable Securities that
are the subject of such Registration Statement.
7. Indemnification
---------------
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, notwithstanding
termination of this Agreement and without limitation as to time, indemnify and
hold harmless each Holder, the officers, directors, agents (including any
underwriters retained by such Holder in connection with the offer or sale of
Registerable Securities), brokers, investment advisors and employees of each of
them, each Person who controls any such Holder (within the meaning of SECTION 15
of the Securities Act or SECTION 20 of the Exchange Act) and the officers,
directors, agents and employees of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, costs of preparation
and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising
out of or relating to any untrue or alleged untrue statement of a material fact
contained in a Registration Statement, any Prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary prospectus, or
arising out of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
(in the case of any Prospectus or form of prospectus or supplement thereto, in
light of the circumstances under which they were made) not misleading, except to
the extent, but only to the extent, that such untrue statements or omissions are
based solely upon information regarding such Holder furnished in writing to the
Company by or on behalf of such Holder expressly for use therein, which
information was reasonably relied on by the Company for use therein or to the
extent that such information relates to such Holder or such Holder's proposed
method of distribution of Registrable Securities and was reviewed and expressly
approved in writing by such Holder expressly for use in a Registration
Statement, such Prospectus or such form of Prospectus or in any amendment or
supplement thereto. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the Company is aware
in connection with the transactions contemplated by this Agreement.
(b) INDEMNIFICATION BY HOLDERS. In connection with a Registration
Statement, each Holder shall furnish to the Company in writing such information
regarding such Holder as the Company reasonably requests for use in connection
with the Registration Statement or any Prospectus and agrees, severally and not
jointly, to indemnify and hold harmless the Company, their directors, officers,
agents and employees, each Person who controls the Company (within the meaning
of SECTION 15 of the Securities Act and SECTION 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling Persons, to the
fullest extent permitted by applicable law, from and against all Losses (as
determined by a court of competent jurisdiction in a final judgment not subject
to appeal or review) arising solely out of or based solely upon any untrue
statement of a material fact contained in a Registration Statement, any
Prospectus, or any form of prospectus, or arising solely out of or based solely
upon any omission of a material fact required to be stated therein or necessary
to make the statements therein not
14
misleading to the extent, but only to the extent, that such untrue statement or
omission is contained in any information regarding such Holder so furnished in
writing by such Holder to the Company specifically for inclusion in the
Registration Statement or such Prospectus and that such information was
reasonably relied upon by the Company for use in the Registration Statement,
such Prospectus or such form of prospectus or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use in the Registration Statement, such
Prospectus or such form of Prospectus. In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any Proceeding shall be
brought or asserted against any Person entitled to indemnity hereunder (an
"INDEMNIFIED PARTY"), such Indemnified Party promptly shall notify the Person
from whom indemnity is sought (the "INDEMNIFYING PARTY") in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the payment of all
fees and expenses incurred in connection with defense thereof; provided, that
the failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations or liabilities pursuant to this Agreement,
except (and only) to the extent that it shall be finally determined by a court
of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and materially
adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any
such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party or
Parties unless: (1) the Indemnifying Party has agreed to pay such fees and
expenses; or (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that a conflict of interest is likely to exist if the same counsel
were to represent such Indemnified Party and the Indemnifying Party (in which
case, if such Indemnified Party notifies the Indemnifying Party in writing that
it elects to employ separate counsel at the expense of the Indemnifying Party,
the Indemnifying Party shall not have the right to assume the defense thereof
and such counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending Proceeding in respect of
which any Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
15
All fees and expenses of the Indemnified Party (including reasonable fees
and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
SECTION) shall be paid to the Indemnified Party, as incurred, within 10 Business
Days of written notice thereof to the Indemnifying Party (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; PROVIDED, that the Indemnifying Party may require
such Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such Indemnified Party is
not entitled to indemnification hereunder).
(d) CONTRIBUTION. If a claim for indemnification under SECTION 7(a) or 7(b)
is unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless for any Losses in respect of which this SECTION would
apply by its terms (other than by reason of exceptions provided in this
SECTION), then each Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in SECTION 7(c), any attorneys' or other fees or expenses incurred by such party
in connection with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this SECTION was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this SECTION 7(d) were determined by PRO RATA
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this SECTION 7(d), the Purchaser shall not be
required to contribute, in the aggregate, any amount in excess of the amount by
which the proceeds actually received by the Purchaser from the sale of the
Registrable Securities subject to the Proceeding exceeds the amount of any
damages that the Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of SECTION 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this SECTION are in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
16
8. Rule 144
--------
The Company shall file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file such reports, they will, upon the request of any
Holder, make publicly available other information so long as necessary to permit
sales of its securities pursuant to Rule 144. The Company further covenants that
it will take such further action as any Holder may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144. Upon the request of any Holder, the
Company shall deliver to such Holder a written certification of a duly
authorized officer as to whether it has complied with such requirements.
9. Miscellaneous
-------------
(a) REMEDIES. In the event of a breach by the Company or by a Holder, of
any of their obligations under this Agreement, each Holder or the Company, as
the case may be, in addition to being entitled to exercise all rights granted by
law and under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. None of the Company nor any of its
subsidiaries has, as of the date hereof, nor shall the Company or any of its
subsidiaries, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Except as specifically disclosed in a schedule to the Purchase Agreement, none
of the Company nor any of its subsidiaries has previously entered into any
agreement granting any registration rights with respect to any of its securities
to any Person. Without limiting the generality of the foregoing, without the
written consent of the Holders of a majority of the then outstanding Registrable
Securities, the Company shall not grant to any Person the right to request the
Company to register any securities of the Company under the Securities Act
unless the rights so granted are subject in all respects to the prior rights in
full of the Holders set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of this Agreement.
(c) NO PIGGYBACK ON REGISTRATIONS. Except as specifically disclosed in a
schedule to the Purchase Agreement, none of the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto) may include
securities of the Company in a Registration Statement other than the Common
Stock to be issued as contemplated in the Purchase Agreement, and the Company
shall not enter into any agreement providing any such right to any of its
security holders.
17
(d) ENTIRE AGREEMENT; AMENDMENTS. This Agreement, together with the
Exhibits, Annexes and Schedules hereto, contain the entire understanding of the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters.
(e) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the same shall be in writing and signed by the Company and the Holders of
at least a majority of the then outstanding Registrable Securities; PROVIDED,
HOWEVER, that, for the purposes of this sentence, Registrable Securities that
are owned, directly or indirectly, by the Company, or an Affiliate of the
Company are not deemed outstanding. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities to which such waiver or consent
relates; provided, however, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(f) NOTICES. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been received
(a) upon hand delivery (receipt acknowledged) or delivery by telex (with correct
answer back received), telecopy or facsimile (with transmission confirmation
report) at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
If to the Company: IMMUNOGEN, INC.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to: Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx
and Xxxxx X. Xxxxxx
Fax: (000) 000-0000
18
If to the Purchaser: Southbrook International Investments, Ltd.
c/o Trippoak Advisors, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, N.Y. 10111
Attn: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to: Xxxxx Xxxxxxx, LLC
Carnegie Hall Tower
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
- and -
Xxxxxxxx Xxxxxxxxx Xxxxxx
Aronsohn & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
and Xxxx X. Xxxxx
Fax: (000) 000-0000
or if to any other Person who is then the registered Holder:
To the address of such Holder as it appears in the stock transfer books of the
Company or such other address as may be designated in writing hereafter, in the
same manner, by such Person.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder and its successors, assignees,
pledgees and donees. The Company may not assign its rights or obligations
hereunder without the prior written consent of each Holder.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement. In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) the same with the same force and
effect as if such facsimile signature were the original thereof.
(i) GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New
19
York, without regard to principles of conflicts of law. The Company hereby
irrevocably submits to the jurisdiction of any New York state court sitting in
the Borough of Manhattan in the City of New York or any federal court sitting in
the Borough of Manhattan in the City of New York (collectively, the "NEW YORK
COURTS") in respect of any Proceeding arising out of or relating to this
Agreement, and irrevocably accepts for itself and in respect of its property,
generally and unconditionally, jurisdiction of the New York Courts. The Company
irrevocably waives to the fullest extent it may effectively do so under
applicable law any objection that it may now or hereafter have to the laying of
the venue of any such Proceeding brought in any New York Court and any claim
that any such Proceeding brought in any New York Court has been brought in an
inconvenient forum. Nothing herein shall affect the right of any Holder to serve
process in any manner permitted by law or to commence legal proceedings or
otherwise proceed against the company in any other jurisdiction.
(j) CUMULATIVE REMEDIES. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law.
(k) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(l) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(m) SHARES HELD BY THE COMPANY AND ITS AFFILIATES. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its Affiliates
(other than the Purchaser or transferees or successors or assigns thereof if
such Persons are deemed to be Affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
IMMUNOGEN, INC.
By:
----------------------------
Name:
Title:
SOUTHBROOK INTERNATIONAL INVESTMENTS, LTD.
By:
----------------------------
Name:
Title:
