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Exhibit 10.28
EXHIBIT A
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
This Offshore Securities Subscription Agreement ("Agreement") is executed
in reliance upon the transaction exemption afforded by Regulation S
("Regulation S") as promulgated by the Securities and Exchange Commission
("SEC"), under the Securities Act of 1933, as amended ("1933 Act").
This Agreement has been executed by the undersigned in connection with the
private placement of 7% Convertible Debentures (hereinafter referred to as the
"Debentures") of ImmunoGen, Inc., a corporation organized and existing under
the laws of the Commonwealth of Massachusetts, U.S.A., NASDAQ National Market
Symbol "IMGN" (hereinafter referred to as the "COMPANY"). The Debentures being
sold pursuant to this Agreement, and the Shares (as defined below), have not
been registered under the 1933 Act and may not be offered or sold in the United
States or to U.S. Persons, other than distributors (as such terms are defined
in Regulation S), unless the Debentures or the Shares, as the case may be, are
registered under the 1933 Act, or an exemption from the registration provisions
of the 1933 Act is available. The terms on which the Debentures may be
converted into common stock (the "Shares") and the other terms of the
Debentures are set forth in the pro forma Debenture in Annex I annexed hereto.
This subscription and, if accepted by the COMPANY, the offer and sale of
Debentures and the Shares issuable upon conversion thereof (collectively the
"Securities"), are being made in reliance upon the provisions of Regulation S
("Regulation S") under the 1933 Act.
The undersigned
NAME:
ADDRESS:
if applicable, a [Corporation][Partnership][Trust] organized under the laws of
__________, a non USA jurisdiction (hereinafter referred to as the "PURCHASER")
hereby represents and warrants to, and agrees with, the COMPANY as follows:
1. Agreement to Subscribe.
a. Subscription Amount. The undersigned hereby subscribes for
$______________ in principal amount of 7% Debentures.
b. Form of Payment. The PURCHASER shall pay the purchase price for the
Debentures by delivering good funds in United States Dollars to the escrow
agent identified in the Joint Escrow Instructions attached hereto as Annex II
(the "Escrow Agent"). Delivery of such funds to the COMPANY by the Escrow
Agent shall be made against delivery by the COMPANY of one or more
Debentures in accordance with this Agreement. By signing this Agreement, the
PURCHASER and the COMPANY each agrees to all of the terms and conditions of,
and becomes a party to, the Joint Escrow Instructions attached hereto as Annex
II, all of the provisions of which are incorporated herein by this reference as
if set forth in full.
c. Method of Payment. Payment of the purchase price for the Debentures
shall be made by wire transfer of funds to:
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Bank of New York 350 Fifth Avenue New York, New York 10001
ABA# 021000018
For Further Credit to A/C# 1050036843 for credit to the account of Krieger &
Prager, Attorneys
Not later than three (3) business days after acceptance and execution
of this Agreement by the COMPANY, the PURCHASER shall deposit with the Escrow
Agent the aggregate subscription price for the Debentures.
2. Subscriber Representations and Covenants; Access to Information;
Independent Investigation.
a. Offshore Transaction. PURCHASER represents, warrants and
covenants to COMPANY as follows:
(i) PURCHASER is not a U.S. Person as that term is defined under
Regulation S, as set forth in Annex III.
(ii) PURCHASER is outside the United States as of the date of the
execution and delivery of this Agreement.
(iii) PURCHASER is purchasing the Debentures for its own account
and not on behalf of any U.S. Person, and PURCHASER is the sole beneficial
owner of the Debentures, and has not pre-arranged any sale with any purchaser
or purchasers in the United States.
(iv) PURCHASER represents and warrants and hereby agrees that all
offers and sales of the Debentures prior to the expiration of a period
commencing on the date of the receipt of funds by the COMPANY and
ending 40 days thereafter (the "Restricted Period") shall only be made in
compliance with the safe harbor contained in Regulation S, pursuant to the
registration provisions under the 1933 Act or pursuant to an exemption from
registration, and all offers and sales after the expiration of the 40-day
period shall be made only pursuant to such registration or to an exemption from
registration.
(v) PURCHASER acknowledges that the purchase of the Debentures
involves a high degree of risk is aware of the risks and further acknowledges
that it can bear the economic risk of the purchase of the Debentures, including
the total loss of its investment.
(vi) PURCHASER understands that the Debentures are being offered and
sold to it in reliance on specific exemptions from the registration
requirements of U.S. securities laws and that the COMPANY is relying upon the
truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of PURCHASER set forth herein in order to
determine the applicability of such exemptions and the suitability of PURCHASER
to acquire the Debentures, and the Shares issuable upon conversion thereof.
PURCHASER represents and warrants that the information contained herein is
complete and accurate. PURCHASER further represents and warrants that it will
notify the COMPANY immediately upon the occurrence of any material change
therein occurring prior to the issuance of Shares upon conversion of the
Debenture.
(vii) PURCHASER is sufficiently experienced in financial and
business matters to be capable of evaluating the merits and risks of its
investments, and to make an informed decision relating thereto.
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(viii) In evaluating its investment, PURCHASER has consulted its
own investment and/or legal and/or tax advisors. PURCHASER is not relying on
the COMPANY respecting the tax and other economic considerations of an
investment in the Debentures.
(ix) PURCHASER understands that in the view of the SEC the statutory
basis for the exemption claimed for this transaction would not be present if
the offering of Debentures, and the Shares issuable upon conversion thereof,
although in technical compliance with Regulation S, is part of a plan or scheme
to evade the registration provisions of the 1933 Act. PURCHASER is acquiring
the Debentures for investment purposes and has no present intention to sell the
Debentures, or the Shares issuable upon conversion thereof, in the United
States or to a U.S. Person or for the account or benefit of a U.S. Person
either now or after the expiration of the Restricted Period.
(x) PURCHASER is not an underwriter of, or dealer in, the
Securities, and PURCHASER is not participating, pursuant to a contractual
agreement, in the distribution of the Securities.
(xi) During the period the Debenture is outstanding, neither
PURCHASER nor any of its affiliates will, directly or indirectly, maintain
any short position in the securities of the COMPANY.
(xii) During the period commencing on the Closing Date (as
defined herein) and ending on the 45th day following such date, PURCHASER will
not sell, commit or agree to sell or pledge any shares of Common Stock of the
COMPANY or any other securities convertible into or exercisable for shares of
Common Stock of the COMPANY.
(xiii) PURCHASER has taken no action which would give rise to any
claim by any person for brokerage commission, finders' fees or the like
relating to this Agreement or the transactions contemplated hereby.
b. Current Public Information. PURCHASER acknowledges that
PURCHASER has been furnished with or has acquired copies of the COMPANY's most
recent Annual Report on the Form 10-K filed with the SEC for the fiscal year
ended June 30, 1994, and the Forms 10-Q for the quarters ended September 30 and
December 31, 1994 and March 31, 1995, and 8-K filed thereafter (collectively
the "SEC Filings"). PURCHASER is not relying upon any representations or other
information (whether oral or written) other than as set forth in the SEC
filings or in Annex IV.
c. Independent Investigation; Access. PURCHASER acknowledges that
PURCHASER, in making the decision to purchase the Debentures subscribed for,
has relied upon independent investigations made by it and its representatives,
if any, and PURCHASER and such representatives, if any, have, prior to
any sale to it, been given access and the opportunity to examine all material
publicly available, books and records of the COMPANY, all material contracts
and documents relating to this offering and an opportunity to ask questions of,
and to receive answers from the COMPANY or any person acting on its behalf
concerning the terms and conditions of this offering. PURCHASER and its
advisors, if any, have been furnished with access to all publicly available
materials relating to the business, finances and operation of the COMPANY and
materials relating to the offer and sale of the Debentures which have been
requested. PURCHASER and its advisors, if any, have received complete and
satisfactory answers to any such inquiries.
d. No Government Recommendation or Approval. PURCHASER understands
that no federal or state agency has passed on or made any recommendation or
endorsement of the Securities.
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e. Entity Purchasers. If PURCHASER is a partnership, corporation
or trust, the person executing this Agreement on its behalf represents and
warrants that:
(i) He or she has made due inquiry to determine the truthfulness
of the representations and warranties made pursuant to this Agreement.
(ii) He or she is duly authorized (if the undersigned is a
trust, by the trust agreement) to make this investment and to enter into and
execute this Agreement on behalf of such entity.
f. Individual Purchasers. PURCHASER, if an individual, represents
that he or she has reached the age of 21 and has adequate means for providing
for his or her current and anticipated financial needs and possible
contingencies for emergencies and has no need for liquidity in the proposed
investment.
g. Binding Commitment. This Agreement constitutes a legal, valid
and binding obligation of the PURCHASER. The PURCHASER has full power, right
and authority to enter into and perform this Agreement. The execution and
delivery and performance of this Agreement will not violate or be in conflict
with any order, judgment, injunction, agreement or controlling document to
which the PURCHASER is a party or by which it is bound. If the PURCHASER is an
entity, it was not formed for the specific purpose of acquiring the Debenture.
h. Foreign Laws. PURCHASER hereby covenants that it will comply
with all laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or deliver the Securities, or has in its possession or
distributes any offering material.
3. COMPANY Representations.
a. Reporting Company Status. The COMPANY is a reporting issuer as
defined by Rule 902 of Regulation S. The COMPANY is in full compliance, to the
extent applicable, with all reporting obligations under either Section 12(b),
12(g) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The COMPANY has registered its common stock pursuant to
Section 12 of the Exchange Act and the common stock trades on NASDAQ/NMS.
b. Offshore Transaction. The COMPANY has not offered these
securities to any person in the United States or to any U.S. Person as that
term is defined in Regulation S.
c. No Directed Selling Efforts. In regard to this transaction, the
COMPANY has not conducted any "direct selling efforts" as that term is defined
in Rule 902 of Regulation S nor has the COMPANY conducted any general
solicitation relating to the offer and sale of the within securities to persons
resident within the United States or elsewhere.
d. Terms of Debentures. The COMPANY will issue the Debentures in
accordance with the terms of Annex I attached hereto.
e. Legality. The COMPANY has the requisite corporate power and
authority to enter into this Agreement and to sell and deliver the Debentures;
this Agreement and the issuance of the Debentures have been duly and validly
authorized by all necessary corporate action by the COMPANY; this Agreement has
been duly and validly executed and delivered by and on behalf of the COMPANY,
and is a valid and binding agreement of the COMPANY, enforceable against it in
accordance with its terms,
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except as enforceability may be limited by general equitable principles,
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other laws affecting creditors rights generally.
f. Non-Contravention. The execution and delivery of this Agreement
and the consummation of the issuance of the Debentures, and the consummation of
the transactions contemplated by this Agreement by the COMPANY do not and will
not conflict with or result in a breach by the COMPANY of any of the terms or
provisions of, or constitute a default under, the Articles of Organization or
by-laws of the COMPANY, or any material indenture, mortgage, deed of trust, or
other material agreement or instrument to which the COMPANY is a party or by
which it or any of its properties or assets are bound or (assuming that the
representations and warranties of the PURCHASER in Section 2 hereof, and the
representations and warranties of the distributor to the COMPANY, are true and
correct), any existing applicable U.S. law, rule, or regulation or any
applicable decrees, judgment or order of any U.S. court, federal or state
regulatory body, administrative agency or other U.S. governmental body having
jurisdiction over the COMPANY or any of its properties or assets, the conflict,
breach, violation or default of or under which would have a material adverse
effect on the COMPANY's business or financial condition.
g. Filings. The COMPANY undertakes and agrees to make all
necessary filings in connection with the sale of the Debentures as required by
United States laws and regulations or any domestic securities exchange or
trading market.
h. Absence of Certain Changes. Since March 31, 1995, there has
been no material adverse development in the assets, liabilities, business,
properties, operations, financial condition or results of operations of the
COMPANY, except as disclosed in the SEC Filings or in Annex IV.
4. Transfer Agent Instructions.
a. Debentures. Upon the conversion of the Debentures, the
PURCHASER thereof shall submit such Debenture to COMPANY, and COMPANY shall,
within five (5) business days of receipt of such Debenture, instruct COMPANY's
transfer agent to issue one or more certificates representing that number of
shares of Common Stock into which the Debenture or Debentures are convertible
in accordance with the provisions regarding conversion set forth in Annex I
hereto. The COMPANY shall act as Debenture Registrar and shall maintain an
appropriate ledger containing the necessary information with respect to each
Debenture.
b. Shares to be Issued Without Restrictive Legend. Subject to the
completeness and accuracy of the PURCHASER's representations and warranties
herein, upon the conversion of any Debenture by a person who is a non-U.S.
Person, COMPANY shall instruct the COMPANY's transfer agent to issue stock
certificates without restrictive legend in the name of PURCHASER (or its nominee
(being a non-U.S. Person) or such non-U.S. Persons as may be designated by
PURCHASER prior to the closing) and in such denominations to be specified at
conversion representing the number of shares of Common Stock issuable upon such
conversion, as applicable; provided, however, that if the nominee or other
non-U.S. Person in whose name a certificate or certificates for shares are
requested to be registered is other than PURCHASER, or if there has been a
regulatory development including, but not limited to, an amendment or proposed
amendment of Regulation S, or any "no-action" or interpretive guidance whether
oral or written from the Securities and Exchange Commission, which call into
question the ability of COMPANY to issue to PURCHASER the Securities without
registration under the United States Securities Act of 1933, COMPANY may require
prior to issuance of a certificate in the name of PURCHASER or such other
person, that it receive reasonable transfer documentation including
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opinions of counsel acceptable to COMPANY that the issuance of certificates
without restrictive legend and/or in such other name does not and will not cause
a violation of the Act or any applicable state or foreign securities laws; and
provided further that COMPANY warrants that no instructions other than these
instructions and instructions to impose a "stop transfer" instruction with
respect to the Debenture until the end of the Restricted Period have been or
will be given to the transfer agent and that the Shares will not be subject to
any transfer limitations other than those imposed by applicable securities laws.
Nothing in this Section 4, however, shall affect in any way PURCHASER's or such
nominee's obligations and agreement to comply with all applicable securities
laws upon resale of the Securities.
c. If, solely as a result of the COMPANY's wrongful refusal to honor
PURCHASER's instruction in willful contravention of this Agreement, or wrongful
refusal or failure to transfer or issue the Shares in willful contravention of
this Agreement, PURCHASER suffers any loss (other than any consequential,
indirect, incidental or special damages), the COMPANY shall reimburse PURCHASER
for such loss unless PURCHASER shall have breached any of its representations,
warranties or covenants set forth in this Agreement, or otherwise taken or
omitted to take actions, which actions or omissions constitute gross
negligence, bad faith or willful misconduct.
5. Exemption; Reliance on Representation. PURCHASER understands that
the offer and sale of the Debentures, and the Shares issuable upon conversion
thereof, is not being registered under the 1933 Act. The COMPANY is relying on
the rules governing offers and sales made outside the United States pursuant to
Regulation S. Rules 901 through 904 of Regulation S govern this transaction.
6. Closing Date and Escrow Agent. The date of the issuance of the
Debentures and the sale of the Debentures as evidenced by receipt by the
COMPANY from the Escrow Agent or each PURCHASER's purchase funds (the "Closing
Date") shall be no later than ten (10) business days after execution hereof by
all parties or such other mutually agreed to time. PURCHASER shall, within
three (3) business days after acceptance and execution of this Agreement by the
COMPANY, deliver the necessary funds as indicated in Paragraph 1 to the Escrow
Agent. Debentures will be delivered to the Escrow Agent at the instructions of
the COMPANY. PURCHASER agrees that the Escrow Agent has no liability as a
result of any fraudulent or unlawful conduct of any other party, and agrees to
hold the Escrow Agent harmless.
7. Conditions to the COMPANY's Obligation to Sell. PURCHASER
understands that COMPANY's obligation to sell the Debentures is conditioned
upon:
a. The receipt and acceptance by the COMPANY of this Agreement as
evidenced by execution of this Agreement by the President or any Vice President
of the COMPANY. The acceptance of funds by the COMPANY shall be deemed to be
constructive acceptance of this Agreement;
b. Delivery to the Escrow Agent by each PURCHASER of good funds as
payment in full for the purchase of the Debentures; and
c. The accuracy on the Closing Date of the representations and
warranties of PURCHASER contained in this Agreement and the performance by
PURCHASER on or before the Closing Date of all covenants and agreements of
PURCHASER required to be performed on or before the Closing Date.
d. There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or requiring
any consent or approval which shall not have been obtained.
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8. Conditions to PURCHASER's Obligation to Purchase. The COMPANY
understands that PURCHASER's obligation to purchase the Debentures is
conditioned upon:
a. Acceptance by PURCHASER of an Agreement for the sale of
Debentures;
b. Delivery of Debentures to Escrow Agent as herein set forth;
c. The accuracy on the Closing Date of the representations and
warranties of the COMPANY contained in this Agreement and the performance by
the COMPANY on or before the Closing Date of all covenants and agreements of
the COMPANY required to be performed on or before the Closing Date; and
d. Delivery to the Escrow Agent of an opinion of counsel for the
COMPANY, dated the Closing Date and addressed to PURCHASER, in the form
attached hereto as Annex III.
9. Registration of the Securities. COMPANY hereby agrees that, upon
demand of a majority in interest of holders of the Securities as a result of a
regulatory development including, but not limited to, an amendment or proposed
amendment of Regulation S, or any "no-action" or interpretive guidance whether
oral or written from the Securities and Exchange Commission, which call into
question the ability of PURCHASER to resell the Securities without
registration, COMPANY will file, and use its reasonable best efforts to cause
to become effective a registration statement on Form S-3 under the 1933 Act
covering the resale of the Shares issuable upon conversion of the Debentures.
Any such registration statement shall remain effective for up to twelve (12)
months, or until all of the Securities are sold, whichever is earlier. The
COMPANY shall provide the PURCHASER with such number of copies of the
prospectus as shall be reasonably requested to facilitate the sale of the
Shares issuable upon conversion of the Debentures. The COMPANY shall bear and
pay all expenses incurred in connection with any such registration, excluding
discounts and commissions.
10. Further Offerings. COMPANY agrees that, for a period of 180 days
from the Closing Date, it will not offer for sale or sell any securities other
than the Shares issuable upon conversion of the Debentures issued to the
PURCHASER and to other purchasers contemporaneously herewith, unless, in the
opinion of COMPANY's counsel, such offer or sale does not jeopardize the
availability of exemptions from the registration and qualification requirements
under all applicable securities laws with respect to the Shares. COMPANY
hereby warrants that it has not engaged in any such offering during the six
months prior to the Closing Date, except as disclosed in Annex V hereof.
11. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Massachusetts without giving effect to
principles governing the conflicts of laws. A facsimile transmission of this
signed Agreement shall be legal and binding on all parties hereto.
12. Notices. Any notice required or permitted hereunder shall be given
in writing (unless otherwise specified herein) and shall be deemed effectively
given upon personal delivery or three business days after deposit in the United
States Postal Service, by registered or certified mail with postage and fees
prepaid, addressed to each of the other parties thereunto entitled at the
following addresses, or at such other addresses as a party may designate by ten
days advance written notice to each of the other parties hereto.
COMPANY: ImmunoGen, Inc. 148 Sidney Street Cambridge, MA 02139
ATT: Chief Financial Officer
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PURCHASER: At the address set forth on the first page of this Agreement.
ESCROW AGENT: Krieger & Prager, Esqs. 319 Fifth Avenue New York, New York 10016
13. Survival of Representations and Warranties. PURCHASER's
representations and warranties shall survive the execution and delivery hereof
of t his Agreement and the delivery of the Debenture.
14. Each of the parties shall pay its own fees and expenses in connection
with this Agreement and the transactions contemplated hereby whether or not
consummated.
SIGNATURE(S) FOR INDIVIDUAL SUBSCRIBER(S)
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that he, she or they have executed this
Offshore Securities Subscription Agreement this ______ day of ______________,
1995.
___________________________________ ____________________________________
Printed Name Signature
___________________________________ ___________________________________
Printed Name Signature
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that it has caused this Offshore Securities
Subscription Agreement to be duly executed on its behalf this ________ day of
___________________, 1995.
_____________________________________
Printed Name of Subscriber
By: _________________________________
(Signature of Authorized Person)
_____________________________________
Printed Name and Title
Accepted this __________ day of the month of ___________________, 199___.
IMMUNOGEN, INC.
By: __________________________________________
Title: _______________________________
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All correspondence and delivery of certificates and confirmations should
be addressed to the above named person and sent by the COMPANY to his _____
business _____ home address (check one).
Capacity of Subscriber (check one):
Individual_______ Corporation_______ Partnership_______ Other___________
(please specify)
Ownership of Debentures (check one):
Individual __________ Joint Tenants, with right of survivorship__________*
Tenants in Common __________* Tenants in Entirety __________*
Community Property __________*
Country of Citizenship: ______________________________________________
Country of incorporation or formation: _________________________________
* If you are purchasing Debentures with only your spouse as co-owner, both
you and your spouse must sign the signature page. If any co-owner is not
your spouse, all co-owners must sign the signature page.
Name of PURCHASER Representative, if any: ___________________________________
Address: ___________________________________
___________________________________
Telephone: ___________________________________
Full Name and Address of PURCHASER for Registration Purposes:
NAME: _______________________________________________________________
ADDRESS: _______________________________________________________________
_______________________________________________________________
_______________________________________________________________
TEL. NO. _______________________________________________________________
FAX. NO. _______________________________________________________________
CONTACT NAME: _____________________________________________________________
Delivery Instructions (if different from Registration Name):
NAME: _______________________________________________________________
ADDRESS: _______________________________________________________________
_______________________________________________________________
_______________________________________________________________
TEL. NO. _______________________________________________________________
FAX. NO. _______________________________________________________________
CONTACT NAME: _____________________________________________________________
SPECIAL INSTRUCTIONS:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
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