1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 8, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
IMMUNOGEN, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2726691
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
148 SIDNEY STREET, CAMBRIDGE, MASSACHUSETTS 02139 (617) 769-4242
(Address, including zip code, and telephone, including area code, of
registrant's principal executive offices)
------------------------
MITCHEL SAYARE
CHAIRMAN OF THE BOARD
IMMUNOGEN, INC.
148 Sidney Street
Cambridge, MA 02139
(617) 769-4242
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
JONATHAN L. KRAVETZ, ESQUIRE
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
One Financial Center
Boston, MA 02111
(617) 542-6000
------------------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earliest
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
2
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of each offering aggregate Amount of
class of securities Amount to be price per offering registration
to be registered registered share price fee
- ----------------------------------------------------------------------------------------------------------------------
Common Stock, par 1,916,666 $2.91(1) $5,577,498(1) $1,690.15
value $.01 per share
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(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the
Securities Act, based upon the average of the high and low sale prices of the Common Stock as
reported on the Nasdaq National Market on November 6, 1996.
-----------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PROSPECTUS
IMMUNOGEN, INC.
1,916,666 SHARES OF COMMON STOCK
(PAR VALUE OF $.01 PER SHARE)
The 1,916,666 shares of Common Stock of ImmunoGen, Inc., a
Massachusetts corporation ("ImmunoGen" or the "Company"), offered hereby are
being sold by the selling stockholders identified herein (the "Selling
Stockholders"). Such offers and sales may be made on one or more exchanges, in
the over-the-counter market, or otherwise, at prices and on terms then
prevailing, or at prices related to the then-current market price, or in
negotiated transactions, or by underwriters pursuant to underwriting agreements
in customary form, or in a combination of any such methods of sale. The Selling
Stockholders may also sell such shares in accordance with Rule 144 under the
Securities Act. The Selling Stockholders are identified and certain information
with respect to them is provided under the caption "Selling Stockholders"
herein, to which reference is made. The expenses of the registration of the
securities offered hereby, including fees of counsel for the Company, will be
paid by the Company. The following expenses will be borne by the Selling
Stockholders: underwriting discounts and selling commissions, if any, and the
fees of legal counsel, if any, for the Selling Stockholders. The filing by the
Company of this Prospectus in accordance with the requirements of Form S-3 is
not an admission that any person whose shares are included herein is an
"affiliate" of the Company.
The Selling Stockholders have advised the Company that they have not
engaged any person as an underwriter or selling agent for any of such shares,
but they may in the future elect to do so, and they will be responsible for
paying such a person or persons customary compensation for so acting. The
Selling Stockholders and any broker executing sell orders on behalf of any
Selling Stockholder may be deemed to be "underwriters" within the meaning of the
Securities Act, in which event commissions received by any such broker may be
deemed to be underwriting commissions under the Securities Act. The Company will
not receive any of the proceeds from the sale of the securities offered hereby.
The Common Stock is listed on the Nasdaq Stock Market ("Nasdaq") under the
symbol IMGN. On November 6, 1996, the closing sale price of the Common Stock,
as reported by Nasdaq, was $3.00 per share.
------------------------
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" ON PAGE 4 OF THIS PROSPECTUS.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
No person is authorized in connection with any offering made hereby to
give any information or to make any representations other than as contained in
this Prospectus, and, if given or made, such information or representations must
not be relied upon as having been authorized by the Company. This Prospectus is
not an offer to sell, or a solicitation of an offer to buy, by any person in any
jurisdiction in which it is unlawful for such person to make such an offer or
solicitation. Neither the delivery of this Prospectus nor any sales made
hereunder shall under any circumstances create any implication that the
information contained herein is correct as of any time subsequent to the date
hereof.
------------------------
THE DATE OF THIS PROSPECTUS IS ___________, 1996.
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AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). These reports, proxy statements and other information can
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024 of the Commission's office at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549, and at its regional offices located at
7 World Trade Center, Suite 1300, New York, NY 10048 and Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, IL 60661. Copies of such reports,
proxy statements and other information can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission. The address of the Commission's
Web site is http://www.sec.gov. Additional updating information with respect to
the securities covered herein may be provided in the future to purchasers by
means of appendices to this Prospectus.
The Company has filed with the Commission in Washington, D.C. a
registration statement (herein, together with all amendments and exhibits,
referred to as the "Registration Statement") under the Securities Act with
respect to the securities offered or to be offered hereby. This Prospectus does
not contain all of the information included in the Registration Statement,
certain items of which are omitted in accordance with the rules and regulations
of the Commission. For further information about the Company and the securities
offered hereby, reference is made to the Registration Statement and the exhibits
thereto.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any document incorporated herein by reference, excluding exhibits. Requests
should be made to ImmunoGen, Inc., 148 Sidney Street, Cambridge, MA 02139,
telephone (617) 769-4242 and directed to the attention of the Chief Financial
Officer.
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TABLE OF CONTENTS
PAGE
RISK FACTORS...........................................................- 4 -
THE COMPANY............................................................- 9 -
SELLING STOCKHOLDERS...................................................- 9 -
PLAN OF DISTRIBUTION..................................................- 10 -
LEGALITY OF COMMON STOCK..............................................- 11 -
EXPERTS .............................................................- 11 -
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE.....................- 11 -
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS........................II-1
SIGNATURES..............................................................II-5
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RISK FACTORS
An investment in the shares being offered by this Prospectus involves a
high degree of risk. The following factors, in addition to those discussed
elsewhere in the Prospectus or incorporated herein by reference, should be
carefully considered in evaluating the Company and its business prospects before
purchasing shares offered by this Prospectus. This Prospectus contains and
incorporates by reference forward-looking statements within the "safe harbor"
provisions of the Private Securities Litigation Reform Act of 1995. Reference is
made in particular to the discussion set forth under "Management's Discussion
and Analysis of Financial Condition and Results of Operations" in the Company's
Annual Report on Form 10-K for the fiscal year ended June 30, 1996 (the "Form
10-K") and under "Business" in the Form 10-K, incorporated in this Prospectus by
reference. Such statements are based on current expectations that involve a
number of uncertainties including those set forth in the risk factors below.
Actual results could differ materially from those projected in the forward
looking statements.
NEED FOR ADDITIONAL FUNDS AND ACCESS TO CAPITAL FUNDING. The Company's
cash resources at June 30, 1996 were approximately $2.8 million. The Company
received an additional $3.0 million in October 1996 pursuant to a private
placement of Series B convertible preferred stock (the "Series B Stock") to an
institutional investor (the "October 1996 Private Placement"). The Company
anticipates that its existing capital resources, including the $3.0 million
proceeds of the October 1996 Private Placement, will enable it to maintain its
current and planned operations through approximately February 1997. Under the
terms of the October 1996 Private Placement, the Company has the right to
require the investor to purchase up to an additional $9.0 million of preferred
stock if certain conditions are met. Receipt of the remaining $9.0 million
available to the Company under the October 1996 Private Placement would enable
the Company to extend its operations to approximately February 1998. However,
because the Company must satisfy certain conditions including obtaining
shareholder approval of this transaction and maintain certain price and volume
levels in trading of its Common Stock, there can be no assurance that the
Company will receive any or all of the remaining $9.0 million under this
financing arrangement. Although management continues to pursue additional
funding arrangements, no assurance can be given that such financing will in fact
be available to the Company. Any such additional funding may result in
significant dilution to the Company's current stockholders. In December 1994,
the Company restructured its clinical resources to focus on its first product
candidate, Oncolysin B, and stopped development of three other products then in
clinical trials. If the Company is unable to obtain financing on acceptable
terms in the future or obtain funds through arrangements with collaborative
partners, which may require the Company to relinquish certain material rights to
its technology, it could be forced to further curtail or discontinue its
operations .
HISTORY OF OPERATING LOSSES AND ACCUMULATED DEFICIT. The Company has
been unprofitable since inception and expects to incur additional net losses
over the next several years, if it is able to raise sufficient working capital
to continue operations. The amount of net losses and the time required by the
Company to reach sustained profitability are highly uncertain. To achieve
profitability, the Company must, among other things, successfully complete
development of its products, obtain regulatory approvals and establish
manufacturing and marketing capabilities. There can be no assurance that the
Company will be able to achieve profitability at all or on a sustained basis.
UNCERTAINTIES ASSOCIATED WITH CLINICAL TRIALS. The Company has
conducted and plans to continue to undertake extensive and costly clinical
testing to assess the safety and efficacy of its potential products. The rate of
completion of the Company's clinical trials is dependent upon, among other
factors, the rate of patient enrollment. Patient enrollment is a function of
many factors, including the nature of the Company's clinical trial protocols,
existence of competing protocols, size of the patient population, proximity of
patients to clinical sites and eligibility criteria for the study. Delays in
patient enrollment will result in increased costs and delays, which could have a
material adverse effect on the Company. The Company cannot assure that patients
enrolled in the Company's clinical trials will continue in the trials or will
respond to the Company's product candidates. Setbacks are to be expected in
conducting human clinical trials. Failure to comply with the United States Food
and Drug Administration ("FDA") regulations applicable to such testing can
result in delay, suspension or cancellation of such testing, and/or refusal by
FDA to accept the results of such testing. In addition, FDA may suspend clinical
trials at any time if it concludes that the subjects or patients participating
in such trials are being exposed to unacceptable health risks. Alternatively,
FDA may require additional trials if it finds that the results of the ongoing
trials are
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inconclusive. Further, there can be no assurance that human clinical testing
will show any current or future product candidate to be safe and effective or
that data derived therefrom will show any current or future product candidate to
be safe and effective or the data derived therefrom will be suitable for
submission to FDA. See "Business -- Regulatory Issues."
EARLY STAGE OF INITIAL PRODUCT DEVELOPMENT. The Company has not begun
to market or generate revenues from the sale of products. The Company is
currently enrolling patients in a Phase III clinical trial of its first product,
Oncolysin B, and does not expect to complete such enrollment until 1997. The
Company's products will require significant additional development, laboratory
and clinical testing and investment prior to commercialization. There can be no
assurance that such products will be successfully developed, prove to be safe
and efficacious in clinical trials, meet applicable regulatory standards, obtain
required regulatory approvals, be capable of being produced in commercial
quantities at reasonable costs or be successfully marketed.
MANUFACTURING RISKS. The Company has not yet commercially introduced
any products. To be successful, the Company's products must be manufactured in
commercial quantities, in compliance with regulatory requirements and at
acceptable costs. Although the Company has produced its products in the
laboratory and scaled its production process to pilot levels, production in
commercial quantities will create substantial technical as well as financial
challenges for the Company. The Company's current facilities are not yet
approved by FDA for commercial production of its proposed products, and there
can be no assurance that such approval will be obtained. In order to manufacture
its products in commercial quantities, the Company will have to enhance its
existing manufacturing facilities, which will require additional funds. The
Company has no experience in large-scale manufacturing, and no assurance can be
given that the Company will be able to make the transition to commercial
production successfully.
The Company currently depends on a single supplier to produce required
quantities of the mouse-derived anti-B4 antibody used in its first product. The
Company believes that if this antibody were not available from this supplier,
the Company would be able to obtain it from other sources. However, such an
event would likely result in the delay of the Company's first product. In
addition, there can be no assurance that the antibody could be obtained from
other sources at an acceptable cost.
LACK OF MARKETING AND DISTRIBUTION EXPERIENCE. Although the Company may
market certain of its products through a direct sales force if and when
regulatory approval is obtained, it currently has no marketing or sales staff.
To the extent that the Company determines not to, or is unable to, arrange
third-party distribution for its products, significant additional expenditures,
management resources and time will be required to develop a sales force. There
can be no assurance that the Company will be able to establish such a sales
force or be successful in gaining market acceptance for its products.
RISK OF TECHNOLOGICAL CHANGE AND COMPETITION. The biotechnology
industry is subject to rapid and significant technological change. Competitors
of the Company engaged in all areas of biotechnology in the United States and
abroad are numerous and include major pharmaceutical and chemical companies,
specialized biotechnology firms, universities and other research institutions.
There can be no assurance that the Company's competitors will not succeed in
developing technologies and products that are more effective than any which have
been or are being developed by the Company or which would render the Company's
technology and products obsolete and noncompetitive. The Company's competitors
may also succeed in obtaining patent protection in other intellectual property
rights that would block the Company's ability to develop its proposed products.
Many of these competitors have substantially greater financial and technical
resources and production and marketing capabilities than the Company. In
addition, many of the Company's competitors have significantly greater
experience than the Company in preclinical testing and human clinical trials of
new or improved pharmaceutical products and in obtaining FDA and other
regulatory approvals of products for use in health care. The Company has limited
experience in conducting and managing preclinical and clinical testing necessary
to obtain government approvals. Accordingly, the Company's competitors may
succeed in obtaining FDA approval for products more rapidly than the Company. If
the Company commences significant commercial sales of its products, it will also
be competing with respect to manufacturing efficiency and marketing
capabilities, areas in which it currently has no experience.
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DEPENDENCE ON PATENTS AND PROPRIETARY RIGHTS. The patent situation in
the field of biotechnology generally is highly uncertain and involves complex
legal, scientific and factual questions. To date, no consistent policy has
emerged regarding the breadth of claims allowed in biotechnology patents.
Accordingly, there can be no assurance that patent applications relating to the
Company's products or technology will result in patents being issued or that, if
issued, the patents will afford protection against competitors with similar
technology.
There has been significant litigation in the biotechnology industry
regarding patent and other intellectual property rights and this litigation is
likely to continue in the future. If the Company becomes involved in such
litigation, it could consume a substantial portion of the Company's resources.
Also, patents and applications owned or licensed by the Company may become the
subject of interference proceedings in the United States Patent and Trademark
Office to determine priority of invention, which could result in substantial
cost to the Company, as well as a possible adverse decision as to priority of
invention of the patent or patent application involved. An adverse decision in
an interference proceeding may result in the Company's loss of rights under a
patent or patent application subject to such a proceeding. In addition,
companies may obtain patents claiming products or processes that are necessary
for or useful to the development of the Company's products and bring legal
actions against the Company claiming infringement and may seek to recover
damages and to enjoin the Company from manufacturing and marketing the affected
product or process. If any such actions are successful, in addition to any
potential liability for damages, the Company may be required to obtain licenses
from others to continue to develop, manufacture or market its products. There
can be no assurance that the Company will prevail in any such action or that it
will be able to obtain such licenses on commercially reasonable terms.
The Company owns three issued United States patents. It has also
applied for several patents. In addition, Dana-Farber Cancer Institute
("Dana-Farber") has filed applications for a number of patents to which the
Company has exclusive rights, and several of these have been issued as patents.
There can be no assurance that any patent applications will issue as patents or
that any issued patents will provide the Company with significant protection
against competitors. The Company's license agreement with Dana-Farber requires
ImmunoGen to use all reasonable efforts, consistent with sound and reasonable
business practices and judgment, to effect introduction of licensed products
into the commercial market as soon as practicable. Failure to do so can result
in the loss of the Company's exclusive rights to such licensed products.
In order to practice its antibody humanization technology using either
Complementarity Determining Region ("CDR") grafting or resurfacing, the Company
may need to obtain one or more licenses under patents issued to third parties.
The Company understands that such licenses may be available on what it believes
to be commercially acceptable terms. However, there can be no assurance that any
such licenses will in fact be, or continue to be, available on commercially
acceptable terms, if at all.
The Company also relies upon unpatented proprietary technology, and no
assurance can be given that others will not duplicate or independently develop
substantially equivalent technology, or otherwise gain access to the Company's
proprietary technology or disclose such technology, or that the Company can
meaningfully protect its rights in such unpatented proprietary technology.
DEPENDENCE ON OTHERS. The Company plans to conduct certain aspects of
its future operations with third-party collaborators who may fund collaborative
work with the Company. While the Company believes its potential collaborators
will have an economic motivation to succeed in performing their obligations
under such arrangements, the amount and timing of funds and other resources to
be devoted under such arrangements will be controlled by such other parties and
would be subject to financial or other difficulties that may befall such other
parties. Thus, no assurance can be given that the Company will generate any
revenues from such arrangements. In addition, although the Company is currently
exploring entry into such arrangements, no such arrangements have been concluded
nor is there any assurance that any such arrangements will ever come into
effect.
DEPENDENCE ON KEY PERSONNEL. The Company's success is dependent on
certain key management and scientific personnel. Competition for qualified
employees among biotechnology companies is intense, and the loss of key
personnel, or the inability to attract and retain the additional, highly skilled
employees required for the expansion of the Company's activities, could
adversely affect its business.
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GOVERNMENT REGULATION. The production and marketing of the Company's
products and its ongoing research and development activities are subject to
regulation by numerous governmental authorities in the United States and other
countries. The rigorous preclinical and clinical testing requirements and
regulatory approval processes typically take a number of years and require the
expenditure of substantial resources. Delays in obtaining regulatory approvals
would adversely affect the marketing of products developed by the Company and
the Company's ability to receive product revenues or royalties. In light of the
limited regulatory history of monoclonal antibody-based therapeutics, there can
be no assurance that regulatory approvals for the Company's products will be
obtained without lengthy delays, if at all. Moreover, the Company is, or may
become, subject to various federal, state and local laws, regulations and
recommendations relating to safe working conditions, laboratory and
manufacturing practices, the experimental use of animals and the use and
disposal of hazardous substances, including radioactive compounds and infectious
disease agents, used in connection with the Company's research work. In
addition, the Company cannot predict the extent to which existing or proposed
governmental regulations might have an adverse effect on the production and
marketing of the Company's products.
DEPENDENCE ON THIRD-PARTY REIMBURSEMENT. In both domestic and foreign
markets, sales of the Company's proposed products will depend in part on the
availability of reimbursement from third-party payors such as government health
administration authorities, private health insurers and other organizations.
Third-party payors are increasingly challenging the price and cost-effectiveness
of medical products and services. Significant uncertainty exists as to the
reimbursement status of newly approved health care products. There can be no
assurance that the Company's proposed products will be considered cost effective
or that adequate third-party reimbursement will be available to enable ImmunoGen
to maintain price levels sufficient to realize an appropriate return on its
investments in product development. Legislation and regulations affecting the
pricing of pharmaceuticals may change before any of the Company's proposed
products are approved for marketing. Adoption of such legislation could further
limit reimbursement for medical products and services.
HAZARDOUS MATERIALS; ENVIRONMENTAL MATTERS. The Company's research and
development activities involve the controlled use of hazardous materials,
chemicals, biological materials and radioactive compounds. The Company is
subject to federal, state and local laws and regulations governing the use,
manufacture, storage, handling and disposal of such materials and certain waste
products. Although the Company believes that its safety procedures for handling
and disposing of such materials comply with the standards prescribed by such
laws and regulations, the risk of accidental contamination or injury from these
materials cannot be completely eliminated. In the event of such an accident, the
Company could be held liable for any resulting damages, and any such liability
could exceed the Company's resources. The Company may be required to incur
significant costs to comply with environmental laws and regulations in the
future. Current or future environmental laws or regulation may have a material
adverse effect on the Company's business, financial condition and results of
operation.
PROPOSED INTERNATIONAL TREATY. More than 150 nations, including the
United States, are signatories to an international treaty restricting the
manufacture and sale of chemical substances identified therein as components of
chemical warfare. Ricin, a natural toxin obtained from a cultivated plant, is
among the substances restricted pursuant to the proposed treaty. Ricin is used
by the Company in one of its two technology platforms, including its first
product candidate, Oncolysin B. If the treaty is ratified by the United States,
such action may adversely impact the availability and price of ricin.
PRODUCT LIABILITY EXPOSURE. The use of the Company's product candidates
during testing or after approval entails an inherent risk of adverse effects
which could expose the Company to product liability claims. There can be no
assurance that the Company would have sufficient resources to satisfy any
liability resulting from these claims. The Company currently has limited product
liability insurance for products in clinical testing. There can be no assurance
that such coverage will be adequate in scope to protect the Company in the event
of a successful product liability claim. Further, there can be no assurance that
it will be able to maintain such insurance or obtain general product liability
insurance on reasonable terms and at an acceptable cost once the Company begins
commercial production of its proposed products or that such insurance will be in
sufficient amounts to provide the Company with adequate coverage against
potential liabilities.
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VOLATILITY OF STOCK PRICE. The market prices for securities of
biotechnology companies have been volatile. The market price for the Common
Stock has fluctuated significantly since public trading commenced in 1989, and
it is likely that the market price will continue to fluctuate in the future.
Announcements of technological innovations or new commercial products by the
Company or its competitors, developments concerning proprietary rights,
including patents and litigation matters, publicity regarding actual or
potential medical results relating to products under development by the Company
or its competitors, regulatory developments in both the United States and
foreign countries, public concern as to the safety of biotechnology products and
economic and other external factors, including the outbreak or material
escalation of hostilities or other calamity or crisis, as well as
period-to-period fluctuations in financial results, may have a significant
impact on the Company's business and on the market price of the Common Stock.
Sales of substantial amounts of the Common Stock in the public market may also
have an adverse impact on the market price of the Common Stock.
ABSENCE OF DIVIDENDS. The Company has not paid any cash dividends on
its capital stock since inception. Furthermore, the Company does not anticipate
paying cash dividends in the foreseeable future.
SHARES ELIGIBLE FOR FUTURE SALE. Sales of substantial amounts of Common
Stock in the public market could have an adverse effect on the price of the
Common Stock. In addition to the shares offered hereby, approximately
[16,963,161] shares of Common Stock are currently freely tradeable on the open
market as of November 1, 1996. In addition, approximately 874,270 shares are
eligible for sale pursuant to Rule 144 of the Securities Act. Also, as of
November 1, 1996, options to purchase 1,672,551 shares of Common Stock were
outstanding pursuant to the Company's stock option plans and 1,165,510 of such
shares were vested and could be exercised at any time prior to their respective
expiration dates. As of November 1, 1996, 26,738 shares of Common Stock were
issuable upon the exercise of warrants issued in connection with a capital lease
financing in March 1994 and 1,259,000 shares of Common Stock were issuable upon
the exercise of warrants issued to date in connection with the Company's
convertible debenture financings.
In March 1996, the Company issued a $2.5 million convertible debenture
which was converted into Series A Convertible Preferred Stock ("Series A Stock")
in October 1996. Each share of Series A Stock is convertible at any time into a
number of shares of Common Stock determined by dividing $1,000 by the lower of
(i) $2.50 or (ii) 85% of the average of the closing bid price for the five days
prior to conversion (the "Conversion Date Price"). Upon conversion, the holder
will also receive warrants (the "Second Warrants") to purchase Common Stock for
50% of the number of shares issuable upon conversion of the Series A Stock. The
Second Warrants will be exercisable at $4.00 per share and expire five years
after the date of issuance. There can be no assurance, however, that any or all
of the warrants will be exercised, or that the Company will receive any proceeds
from such exercise. The Company has registered for resale the approximately
1,873,000 shares of Common Stock which are issuable upon conversion of the
Series A Stock and the Second Warrants. If the Series A Stock and the Second
Warrants become convertible into more than 1,873,000 shares, the Company will be
obligated to register additional shares of Common Stock.
The holders of approximately 792,769 shares of Common Stock (the
"Registrable Securities") are entitled to certain rights to register such shares
under the Securities Act for sale to the public, pursuant to a Registration
Rights Agreement by and among the Company and the holders of Registrable
Securities, as amended (the "Registration Rights Agreement"). The holders of
Registrable Securities include, among others, Aeneas Venture Corporation. Such
holders have the right to require the Company, on not more than two occasions,
whether or not the Company proposes to register any of its Common Stock for
sale, to register all or part of their shares for sale to the public under the
Securities Act, subject to certain conditions and limitations. In addition,
holders of Registrable Securities may require the Company to register all or
part of their shares on Form S-3 (or a successor short form or registration) if
the Company then qualifies for use of such form, subject to certain conditions
and limitations. The Registration Rights Agreement was amended on October 9,
1991 to limit the circumstances pursuant to which the registration rights
granted thereunder may be transferred to third parties and to amend certain
procedural requirements.
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DILUTION. Dilution is likely to occur upon conversion of the Series A
Stock and the exercise of the Second Warrants, and also upon the exercise of
other outstanding stock options and warrants. The Series A Stock can be
converted into shares of the Company's Common Stock at any time. See "Shares
Eligible for Future Sale."
THE COMPANY
ImmunoGen develops pharmaceuticals, primarily for the treatment of
cancer. The Company's first technology platform -- immunoconjugate technology --
uses highly potent, proprietary toxins or drugs coupled to proprietary
monoclonal antibodies for the targeted eradication of tumor cells. The Company's
lead product candidate, Oncolysin B, is based on its blocked-ricin
immunoconjugate technology and is now in a pivotal, large-scale Phase III
clinical trial. The Company also has developed a new class of immunoconjugates
using smallmolecule drugs. Three small-drug immunoconjugate product candidates
are now in research and preclinical development.
Through its majority-owned subsidiary, Apoptosis Technology, Inc.
("ATI"), the Company is developing additional technology platforms based on the
regulation of programmed cell death, or apoptosis. ATI is applying its
understanding of how apoptotic pathways are triggered in cells to identify
product candidates for the treatment of cancer and viral infections, two targets
where inhibition of apoptosis is recognized as an essential element of the
disease. ATI has identified several key proteins which play a role in the
regulation of apoptosis in cancer cells and viruses and, using these, has
developed proprietary screens with which to identify leads for drug development.
The Company was organized in 1981 as a Massachusetts corporation. The
Company's principal offices are located at 148 Sidney Street, Cambridge,
Massachusetts 02139, and its telephone number is (617) 769-4242.
SELLING STOCKHOLDERS
The shares of Common Stock offered hereby by the Selling Stockholders
are issuable upon conversion of 3,000 shares of the Company's Series B Stock
held by Southbrook International Investments Ltd. ("Southbrook") and exercise of
the warrants to purchase an aggregate of 250,000 shares of Common Stock (the
"October 1996 Warrants" to purchase 187,500 shares of Common Stock are held by
Southbrook and warrants to purchase 62,500 shares are held by Brown Simpson,
LLC). The Series B Stock and the October 1996 Warrants were issued to the
Selling Stockholders in connection with the October 1996 Private Placement.
The number of shares registered on the registration statement of which
this Prospectus is a part and the number of shares offered hereby have been
determined by agreement between the Company and Southbrook. The number of shares
of Common Stock that will ultimately be issued to Southbrook upon conversion of
the Series B Stock is dependent upon a conversion formula which relies in part
on the closing bid price of the Common Stock for the 5 trading days immediately
preceding the date of conversion and therefore cannot be determined at this
time.
The following table sets forth information with respect to the
beneficial ownership of the Company's Common Stock by the Selling Stockholder as
of October 16, 1996, and as adjusted to reflect the sale of the Common Stock
offered hereby by the Selling Stockholders.
- 9 -
12
Shares Number of Shares
Owned Prior to Shares Being Owned After
Selling Stockholder Offering(1)(2) Offered Offering(1)(3)
- ------------------- -------------- ------------ ---------------------
Number Percent
------ -------
Southbrook International
Investments, Ltd. 1,020,833(1) 1,854,166 0 *
Brown Simpson, LLC 62,500 62,500 0 *
- ---------------
* Less than 1%
(1) Based on 16,963,161 shares of Common Stock outstanding on October 17, 1996, and as adjusted to reflect
the conversion of the Series B Stock.
(2) Based on 16,963,161 shares of Common Stock outstanding on October 17, 1996, and adjusted to reflect the
exercise of the October 1996 Warrants.
(3) Assumes the sale of all shares offered hereby to unaffiliated third parties.
PLAN OF DISTRIBUTION
The 1,916,666 shares of Common Stock of the Company offered hereby may
be offered and sold from time to time by the Selling Stockholders, or by
pledgees, donees, transferees or other successors in interest. Such offers and
sales may be made from time to time on one or more exchanges or in the
over-the-counter market, or otherwise, at prices and on terms then prevailing or
at prices related to the then-current market price, or in negotiated
transactions. The methods by which the shares may be sold may include, but not
be limited to, the following: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account; (c) an exchange distribution in accordance with the rules of such
exchange; (d) ordinary brokerage transactions and transactions in which the
broker solicits purchasers; (e) privately negotiated transactions; (f) short
sales; and (g) a combination of any such methods of sale. In effecting sales,
brokers or dealers engaged by the Selling Stockholder may arrange for other
brokers or dealers to participate. Brokers or dealers may receive commissions or
discounts from the Selling Stockholders or from the purchasers in amounts to be
negotiated immediately prior to the sale. The Selling Stockholders may also sell
such shares in accordance with Rule 144 under the Securities Act.
From time to time the Selling Stockholders may engage in short sales,
short sales against the box, puts and calls and other transactions in securities
of the Company or derivatives thereof, and may sell and deliver the shares in
connection therewith. From time to time Selling Stockholders may pledge their
shares pursuant to the margin provisions of their respective customer agreements
with their respective brokers. Upon a default by a Selling Stockholder, the
broker may offer and sell the pledged shares of Common Stock from time to time.
The Company has agreed to use its best efforts to maintain the
effectiveness of the registration of the shares being offered hereunder until
October 16, 2000 or such earlier date when all of the shares being offered
hereunder have been sold or may be sold without volume or other restrictions
pursuant to Rule 144 or Rule 144A under the Securities Act, as determined by
counsel to the Company pursuant to a written opinion letter.
- 10 -
13
The Selling Stockholders and any brokers participating in such sales
may be deemed to be underwriters within the meaning of the Securities Act. There
can be no assurance that the Selling Stockholders will sell any or all of the
shares of Common Stock offered hereunder. Southbrook has agreed not to sell a
net number of shares of Common Stock (through short positions or otherwise) in
excess of the greater of (i) 20% of the average trading volume for the week
preceding the sale or (ii) on any given day, 20% of the trading volume on that
day.
All proceeds from any such sales will be the property of the Selling
Stockholder who will bear the expense of underwriting discounts and selling
commissions, if any, and their own legal fees.
LEGALITY OF COMMON STOCK
The validity of the shares of Common Stock hereby is being passed upon
for the Company by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston,
Massachusetts.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Company's Annual Report on Form 10-K for the fiscal year ended June 30,
1996 have been so incorporated in reliance on the report (which includes an
explanatory paragraph concerning uncertainties surrounding the Company's ability
to continue as a going concern) of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996 (File No. 0-17999).
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996.
(c) The Company's Current Report on Form 8-K for the July 15, 1996
event.
(d) The description of the Company's capital stock contained in the
Company's registration statement on Form 8-A under the 1934 Act (File No.
0-17999), including amendments or reports filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act,
prior to the filing of a post-effective amendment which indicates that all
securities covered by this Prospectus have been sold or which deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
- 11 -
14
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses incurred in connection with the sale of the
securities being registered will be borne by the Registrant. Other than the SEC
registration fee, the amounts stated are estimates.
SEC Registration Fee.......................................$1,690.15
Legal Fees and Expenses.....................................3,500.00
Accounting Fees and Expenses................................2,000.00
Miscellaneous.................................................500.00
TOTAL...............................................................$7,690.15
The Selling Stockholder will bear the expense of their own legal
counsel and miscellaneous fees and expenses, if any.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 6(d) of the Registrant's Restated Articles of Organization
provides as follows:
"(d) The liability of the Directors of the Corporation shall be limited
to the fullest extent permitted by Section 13(b)(1 1/2) of the Massachusetts
Business Corporation Law."
Section 6.6 of the Registrant's By-Laws provides as follows:
"Section 6.6 Indemnification of Officers, Directors, and Members of the
Scientific Advisory Board. The corporation shall indemnify and hold harmless
each person, now or hereafter an officer or Director of the corporation, or a
member of the Scientific Advisory Board, from and against any and all claims and
liabilities to which he may be or become subject by reason of his being or
having been an officer, Director of member of the Scientific Advisory Board of
the corporation or by reason of his alleged acts or omissions as an officer,
Director or member of the Scientific Advisory Board of the corporation, and
shall indemnify and reimburse each such officer, Director and member of the
Scientific Advisory Board against and for any and all legal and other expenses
reasonably incurred by him in connection with any such claims and liabilities,
actual or threatened, whether or not at or prior to the time which so
indemnified, held harmless and reimbursed he has ceased to be an officer,
Director or member of the Scientific Advisory Board of the corporation, except
with respect to any matter as to which such officer, Director or member of the
Scientific Advisory Board of the corporation shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interest of the corporation; provided, however, that
prior to such final adjudication the corporation may compromise and settle any
such claims and liabilities and pay such expenses, if such settlement or payment
or both appears, in the judgment of a majority of those members of the Board of
Directors who are not involved in such matters, to be for the best interest of
the corporation as evidenced by a resolution to that effect adopted after
receipt by the corporation of a written opinion of counsel for the corporation,
that, based on the facts available to such counsel, such officer, Director or
member of the Scientific Advisory Board of the corporation has not been guilty
of acting in a manner that would prohibit indemnification. Such indemnification
may include payment by the corporation of expenses incurred in defending a civil
or criminal action proceeding in advance of the final disposition of such action
or
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proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated not to be entitled to indemnification
under this section.
The corporation shall similarly indemnify and hold harmless persons who
serve at its express written request as directors or officers of another
organization in which the corporation owns shares or of which it is a creditor.
The right of indemnification herein provided shall be in addition to and not
exclusive of any other rights to which any officer, Director or member of the
Scientific Advisory Board of the corporation, or any such persons who serve at
its request as aforesaid, may otherwise be lawfully entitled. As used in this
Section, the terms "officer," "Director," and "member of the Scientific Advisory
Board" include their respective heirs, executors, and administrators.
In addition, the Registration Rights Agreement, filed as Exhibit 99.2
hereto, contains provisions for indemnification by the Selling Shareholders of
the Registrant and its officers, directors, and controlling persons against
certain liabilities under the Securities Act.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 Article 4 of the Restated Articles of Organization of the Registrant (previously filed as Exhibit No. 3.1 to
the Registrant's Registration Statement on Form S-1, File No. 33-38883, and incorporated herein by
reference)
4.2 Form of Common Stock Certificate (previously filed as Exhibit No. 4.2 to the Registrant's Registration
Statement on Form S-1, File No. 33-31219, and incorporated herein by reference)
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with respect to the legality of the
securities being registered
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5)
24 Power of Attorney (filed in Part II of this Registration Statement)
99.1 Convertible Preferred Stock Purchase Agreement dated as of October 16, 1996 between Southbrook
International Investments, Ltd. and the Registrant (previously filed as Exhibit No. 10.34 to the Registrant's
Quarterly Report on Form 10-Q for the period ended September 30, 1996 (File No. 0-17999), and
incorporated herein by reference)
99.2 Registration Rights Agreement dated as of October 16, 1996 between Southbrook International Investments,
Ltd. and the Registrant (previously filed as Exhibit No. 10.35 to the Registrant's Quarterly Report on Form
10-Q for the period ended September 30, 1996 (File No. 0-17999), and incorporated herein by reference)
99.3 Warrant dated October 16, 1996 issued to Southbrook International Investments, Ltd. (previously filed as
Exhibit No. 10.36 to the Registrant's Quarterly Report on Form 10-Q for the period ended September 30,
1996 (File No. 0-17999), and incorporated herein by reference)
99.4 Warrant dated October 16, 1996 issued to Brown Simpson, LLC (previously filed as Exhibit No. 10.37 to
the Registrant's Quarterly Report on Form 10-Q for the period ended September 30, 1996 (File No. 0-
17999), and incorporated herein by reference)
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16
ITEM 17. UNDERTAKINGS.
A. Rule 415 Offering
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b)(sec.230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs
(1)(i) and (1)(ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. Filings Incorporating Subsequent Exchange Act Documents by Reference
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the 1934 Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
C. Request for Acceleration of Effective Date or Filing of Registration
Statement on Form S-8
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director,
II-3
17
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Cambridge, Massachusetts on November 7, 1996.
IMMUNOGEN, INC.
By: /s/ Mitchel Sayare
-------------------------------
Mitchel Sayare
Chairman Of The Board and
Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mitchel Sayare and Frank J. Pocher, or
any of them, his attorney-in-fact, each with the power of substitution, for him
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, (or any other
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act) and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite or necessary to be done in and about the
premises, as full to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them or their or his substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Mitchel Sayare Chairman of the Board of November 7, 1996
------------------------ Directors (principal
Mitchel Sayare executive officer)
/s/ Frank J. Pocher Vice President, Chief November 7, 1996
------------------------ Financial Officer, Treasurer
Frank J. Pocher and Director (principal
financial officer and
principal accounting
officer)
/s/ Walter A. Blattler Senior Vice President, November 7, 1996
------------------------ Research and Director
Walter A. Blattler
/s/ Michael Eisenson Director November , 1996
------------------------
Michael Eisenson
/s/ Stuart F. Feiner Director November , 1996
------------------------
Stuart F. Feiner
/s/ Donald E. O'Neill Director November 7, 1996
------------------------
Donald E. O'Neill
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IMMUNOGEN, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-3 REGISTRATION STATEMENT
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Article 4 of the Restated Articles of Organization of the Registrant (previously filed as Exhibit No.
3.1 to the Registrant's Registration Statement on Form S-1, File No. 33-38883, and incorporated
herein by reference)
4.2 Form of Common Stock Certificate (previously filed as Exhibit No. 4.2 to the Registrant's
Registration Statement on Form S-1, File No. 33-31219, and incorporated herein by reference)
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. with respect to the legality of
the securities being registered
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney to file future amendments (Filed in Part II of this Registration Statement)
99.1 Convertible Preferred Stock Purchase Agreement dated as of October 16, 1996 between
Southbrook International Investments, Ltd. and the Registrant (previously filed as Exhibit No. 10.34
to the Registrant's Quarterly Report on Form 10-Q for the period ended September 30, 1996 (File
No. 0-17999), and incorporated herein by reference)
99.2 Registration Rights Agreement dated as of October 16, 1996 between Southbrook International
Investments, Ltd. and the Registrant (previously filed as Exhibit No. 10.35 to the Registrant's
Quarterly Report on Form 10-Q for the period ended September 30, 1996 (File No. 0-17999), and
incorporated herein by reference)
99.3 Warrant dated October 16, 1996 issued to Southbrook International Investments, Ltd. (previously
filed as Exhibit No. 10.36 to the Registrant's Quarterly Report on Form 10-Q for the period ended
September 30, 1996 (File No. 0-17999), and incorporated herein by reference)
99.4 Warrant dated October 16, 1996 issued to Brown Simpson, LLC (previously filed as Exhibit No.
10.37 to the Registrant's Quarterly Report on Form 10-Q for the period ended September 30, 1996
(File No. 0-17999), and incorporated herein by reference)
1
EXHIBIT 5
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
One Financial Center
Boston, Massachusetts 02111
701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000
Washington, D.C. 20004 Fax: 617/542-2241
Telephone: 202/434-7300
Fax: 202/434-7400
November 8, 1996
ImmunoGen, Inc.
148 Sidney Street
Cambridge, Massachusetts 02139-4239
Gentlemen:
We have acted as counsel to ImmunoGen, Inc., a Massachusetts
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of a Registration Statement on Form S-3
(the "Registration Statement"), pursuant to which the Company is registering
under the Securities Act of 1933, as amended, a total of 1,916,666 shares (the
"Shares") of its common stock, $.01 par value per share (the "Common Stock"),
for resale to the public. The Shares are to be sold by the selling stockholders
identified in the Registration Statement. This opinion is being rendered in
connection with the filing of the Registration Statement.
In connection with this opinion, we have examined the Company's
Restated Articles of Organization and Restated By-Laws, both as currently in
effect; such other records of the corporate proceedings of the Company and
certificates of the Company's officers as we have deemed relevant; and the
Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion that (i) the Shares
have been duly and validly authorized by the Company and (ii) the Shares, when
sold, will have been duly and validly issued, fully paid and non-assessable
shares of the Common Stock, free of preemptive rights.
2
Our opinion is limited to the laws of the Commonwealth of
Massachusetts, and we express no opinion with respect to the laws of any other
jurisdiction. No opinion is expressed herein with respect to the qualification
of the Shares under the securities or blue sky laws of any state or any foreign
jurisdiction.
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto. We hereby further consent
to the reference to us under the caption "Legality of Common Stock" in the
prospectus included in the Registration Statement.
Very truly yours,
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference into this Registration
Statement of ImmunoGen, Inc. on Form S-3 to register 1,916,666 shares of Common
Stock of our report (which includes an explanatory paragraph concerning
uncertainties surrounding the Company's ability to continue as a going concern),
dated August 28, 1996, on our audits of the consolidated financial statements of
ImmunoGen, Inc. as of June 30, 1995 and 1996, and for the years ended June 30,
1994, 1995 and 1996, which report is included in the Company's 1996 Annual
Report on Form 10-K.
We also consent to the reference to our Firm in the Registration
Statement under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
November 8, 1996
