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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 11, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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) 661-9312
(Address, including zip code, and telephone, including area code of registrant's
principal executive offices)
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MITCHEL SAYARE
CHAIRMAN OF THE BOARD
IMMUNOGEN, INC.
148 Sidney Street
Cambridge, MA 02139
(617) 661-9312
(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
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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, 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. / /
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
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Common Stock, par value $.01 per
share........................... 3,900,000 $ 2.625 $10,237,500 $3,530.17
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, based on the last
sale price of the Common Stock as reported on the Nasdaq Stock Market on
March 27, 1996.
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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.
3,900,000 SHARES OF COMMON STOCK
(PAR VALUE OF $.01 PER SHARE)
The 3,900,000 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 and their pledgees, donees, transferees
or other successors in interest (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 of 1933, as amended (the "1933
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 in excess of an aggregate of
$10,000 which the Company has agreed to pay in connection with the private
placement of securities convertible into the shares offered hereby and the
registration of the shares offered herein. 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 Stockholders may be deemed to be "underwriters" within the meaning of
the 1933 Act, in which event commissions received by any such broker may be
deemed to be underwriting commissions under the 1933 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 April 9, 1996, the closing sale price of the Common Stock, as reported
by Nasdaq, was $2.56 per share.
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THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" ON PAGE 4 OF THIS PROSPECTUS.
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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.
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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.
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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. 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 1933 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) 661-9312 and directed to the attention of the Chief Financial
Officer.
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TABLE OF CONTENTS
PAGE
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Risk Factors.......................................................................... 4
The Company........................................................................... 8
Selling Stockholders.................................................................. 9
Plan of Distribution.................................................................. 10
Legality of Common Stock.............................................................. 10
Experts............................................................................... 10
Incorporation of Certain Information by Reference..................................... 10
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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, 1995 (the "Form
10-K") and the Quarterly Reports on Form 10-Q for the quarters ended September
30, 1995 and December 31, 1995, 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.
Early Stage of Initial Product Development. The Company has not begun to
market or generate revenues from the sale of products. 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.
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.
Financing Requirements and Access to Capital Funding. The Company's cash
resources at February 29, 1996 were approximately $825,000. Gross proceeds to
the Company from its March 1996 private placement of debentures are $5.0
million, of which $2.5 million has been received. Receipt of the remaining $2.5
million is conditioned on approval by the Company's shareholders of the proposal
to increase the number of authorized shares of the Company's Common Stock. The
Company anticipates that its existing cash resources plus the additional $2.5
million yet to be received in this transaction will enable it to maintain its
current and planned operations through September 1996. Although management
continues to pursue additional funding arrangements, no assurance can be given
that such financing will in fact be available to the Company. If the Company is
unable to obtain financing on acceptable terms in order to maintain operations,
it could be forced to curtail or discontinue its operations.
No Commercial Manufacturing Experience. 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 technical as well as financial
challenges for the Company. The Company's current facilities are not yet
approved by the Food and Drug Administration ("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.
Lack of Marketing and Distribution Experience. Although the Company
intends to 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.
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
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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.
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. 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 has
limited or no experience.
Dependence on Others. The Company plans to conduct certain aspects of its
future operations with third-party collaborators. 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.
The Company currently depends on a single supplier to produce required
quantities of a certain antibody. There can be no assurance that this antibody
will continue to be available from this supplier or, if not available, that the
Company will be able to obtain this antibody from other sources at all or at
acceptable cost or to manufacture sufficient supplies of this antibody on its
own.
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.
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 U.S. 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.
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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 patents. It has also applied for several
patents. In addition, 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.
In order to practice its antibody humanization technology using either
Complementarity Determining Region ("CDR") grafting or resurfacing, the Company
will 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 is aware that a patent has been issued to a third party in
Europe which contains claims covering the Company's blocked ricin technology.
The Company also is aware that patents have been issued in Australia and New
Zealand, that a patent application has been filed in Canada, and the Company
believes that a patent application has been filed in the United States, each of
which may contain claims covering the Company's blocked ricin technology. The
Company intends to oppose the European patent and will, as it deems appropriate,
initiate revocation proceedings against the Australian and New Zealand patents
and interference proceedings against the Canadian and United States
applications, if such patents and applications are shown to cover the Company's
blocked ricin technology. However, there can be no assurance that the Company
will be successful in any opposition, revocation or interference proceeding.
Moreover there can be no assurance that additional patents containing similar
claims will not be issued in other jurisdictions. If the Company is not
successful in invalidating or opposing such patents or otherwise avoiding
infringement, its business may be materially adversely affected as a result of
one or more of the adverse consequences described above.
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.
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.
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.
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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. If the treaty is ratified
by the United States, the Company's ability to obtain ricin could be affected,
although the Company believes it could purchase adequate quantities within the
United States and abroad to satisfy its needs.
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.
Volatility of Stock Price. The market prices for securities of
biotechnology companies have been volatile. The market price for the Company's
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 affect on the price of the
Company's Common Stock. Approximately 14,103,133 million shares of Common Stock
are currently freely tradeable on the open market. In addition, approximately
1,427,222 million shares are eligible for sale pursuant to Rule 144 of the Act.
Also, there were a total of 1,174,424 options to purchase Common Stock
outstanding as of March 31, 1996 pursuant to the Company's stock option plans
and 951,025 of such options are currently vested and can be exercised at any
time prior to their respective expiration dates. As of March 31, 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 125,000 shares of
Common Stock were issuable upon the exercise of warrants issued as finder's fees
in connection with the March 25, 1996 issuance of a $2.5 million principal
amount Debenture.
The holders of approximately 1,345,740 shares of Common Stock (the
"Registrable Securities") are entitled to certain rights to register such shares
under the Securities Act of 1933, as amended, (the "Securities Act") for sale to
the public. 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.
Dilution. Dilution is likely to occur upon conversion of Debentures and
the exercise of warrants issuable upon conversion and also upon the exercise of
outstanding stock options and warrants. The Debentures can be converted into
shares of the Company's Common Stock at any time. The price at which the
Debentures will convert into Common Stock will be the lower of (i) the closing
bid price for the Common Stock at the date the Debenture is sold (the "Closing
Date Price") or (ii) the average of the closing bid price on the five days
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prior to conversion (the "Conversion Date Price"). If the conversion takes place
40 days or more after the sale of the first Debenture, the holder will have the
option to convert at the Closing Date Price or 90% of the Conversion Date Price.
If the conversion takes place more than 80 days after the sale of the first
Debenture, the holder will have the option to convert at the Closing Date Price
or 85% of the Conversion Date Price, and will receive warrants to purchase
Common Stock for 50% of the number of shares issuable upon conversion of the
Debenture. See "Shares Eligible for Future Sales".
THE COMPANY
ImmunoGen, Inc. ("ImmunoGen" or "the Company") develops pharmaceuticals,
primarily for the treatment of cancer. The Company's products are
"immunoconjugates," each comprising a potent effector molecule -- a proprietary
toxin or drug -- coupled to a monoclonal antibody for delivery to and
destruction of targeted cells. Through its subsidiary, Apoptosis Technology,
Inc. ("ATI"), established in 1993, the Company is developing additional
technology platforms, based on the regulation of cell proliferation and
programmed cell death, or apoptosis, with which to identify therapeutic product
candidates for the treatment of cancer and viral diseases.
Since its inception, the Company has acquired significant expertise and
proprietary know-how with regard to the development of immunoconjugates for the
treatment of cancer. The key elements of the Company's proprietary position
include its expertise in identifying and designing both potent effector
molecules and specific targeting agents. Through its network of collaborators,
advisors and consultants, the Company also has access to significant medical
expertise with regard to the treatment of cancer.
Through ATI, the Company has established collaborative ties with leading
academic researchers in the area of apoptosis research and its applications to
the treatment of cancer and viral diseases.
The Company uses several different toxins and drugs in its immunoconjugates
as effector molecules with which to destroy target cells. In each of the
Company's first four products -- the Oncolysins -- a proprietary derivative of
ricin, a powerful, naturally occurring plant toxin, is coupled to a targeting
monoclonal antibody. In the Company's next group of products -- small-drug
immunoconjugates -- potent small-molecule drugs are conjugated to humanized
monoclonal antibodies. ATI is basing its proprietary technology portfolio on the
development of molecular and cellular screening systems for the identification
of leads for therapeutic product candidates.
The Company began conducting clinical trials with the first of the
Oncolysin products in 1988. That first product, Oncolysin B, is now being tested
in lymphoma patients in a large-scale, randomized Phase III clinical study. The
Company's small-drug immunoconjugates are in the research and preclinical phases
of development: in April 1994, the Company successfully submitted an
Investigational New Drug Application ("IND") with the U.S. Food and Drug
Administration ("FDA") to begin human clinical testing of anti-B4-DC1, its first
small-drug immunoconjugate.
The Company's products will require significant additional investment and
laboratory and clinical testing, and regulatory approvals. The Company is
seeking to commercialize its products through collaborations with established
pharmaceutical companies to support clinical testing and development and
manufacturing and for product sales and marketing. The Company also may elect in
the future to establish a specialized sales force in the United States and to
serve international markets through foreign licensees. There can be no
assurance, however, that the Company will be successful in attracting
collaborative partners or in developing or commercializing its products.
The Company's executive offices are located at 148 Sidney Street,
Cambridge, Massachusetts 02139, and its telephone number is (617) 661-9312.
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SELLING STOCKHOLDERS
The shares offered hereby by the Selling Stockholders are issuable (a) upon
conversion of the Company's convertible debentures (the "Debentures") issued to
the Selling Stockholders in a private placement (the "Private Placement"), and
(b) upon conversion of common stock purchase warrants issuable upon conversion
of the Debentures. The following table sets forth information with respect to
the beneficial ownership of the Company's Common Stock by the Selling
Stockholders as of March 25, 1996, as adjusted to reflect the sale of the Common
Stock offered hereby by each Selling Stockholder.
SHARES SHARES
OWNED PRIOR TO OWNED AFTER
OFFERING(1) NUMBER OF OFFERING(2)
------------------- SHARES BEING ---------------------
SELLING STOCKHOLDER NUMBER PERCENT OFFERED NUMBER PERCENT
------------------- ------- ------- ------------ ------ -------
Capital Ventures International.......... 1,500,000 8.8% 1,500,000 -- --
- ---------------
* Less than 1%.
(1) Based on 15,530,355 shares of Common Stock outstanding on March 25, 1996
(assuming the currently outstanding $2.5 million principal amount of
Debentures are convertible into and the Warrants are exercisable into an
aggregate of 1,500,000 shares of Common Stock, based on a closing sale
price of the Common Stock of $2.50 per share on March 25, 1996.) The
Debentures may be converted into shares of the Company's Common Stock at
any time according to a predetermined formula providing for a discount from
the market price of the Common Stock. If the conversion takes place after
June 13, 1996, the Selling Stockholders will also receive warrants to
purchase additional shares of Common Stock equal to one-half of the number
of shares issued upon conversion of the Debentures. The warrants would be
exercisable at $4.00 per share and expire five years after the date of
conversion. If the Company's shareholders approve the proposal to increase
the number of authorized shares of the Company's Common Stock, subject to
certain conditions Capital Ventures International will be obligated to
purchase another $2.5 million principal amount of Debentures.
(2) Assumes the sale of all shares offered hereby to unaffiliated third parties.
9
11
PLAN OF DISTRIBUTION
The 3,900,000 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 Stockholders may arrange for other brokers or dealers to
participate. Brokers or dealers may receive commissions or discounts from
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 1933 Act.
The Company has agreed to use its best efforts to maintain the
effectiveness of the registration of the shares being offered hereunder until
the earlier of the date upon which all of the shares of Common Stock offered
hereby have been sold or the date on which the shares of Common Stock offered
hereby, in the opinion of counsel, may be immediately sold by the Selling
Stockholder without registration.
The Selling Stockholders and any brokers participating in such sales may be
deemed to be underwriters within the meaning of the 1933 Act. There can be no
assurance that the Selling Stockholders will sell any or all of the shares of
Common Stock offered hereunder. The Selling Stockholders have agreed not to sell
a number of shares of Common Stock in excess of the greater of (i) 20% of the
weekly volume (based on volume for the previous week) in any five trading day
period and (ii) on any given day, 20% of the volume on that day.
All proceeds from any such sales will be the property of the Selling
Stockholders who will bear the expense of underwriting discounts and selling
commissions, if any, and their own legal fees in excess of an aggregate of
$10,000 which the Company has agreed to pay in connection with the Private
Placement and this registration.
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, 1995
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, 1995 (File No. 0-17999).
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended September 30, 1995 and December 31, 1995.
(c) The Company's Current Report on Form 8-K for the August 17, 1995
event.
10
12
(d) The Company's Current Report on Form 8-K for the March 21, 1996
event.
(e) 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.
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13
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 and the Nasdaq listing fee, the amounts stated are estimates.
SEC Registration Fee................................................... $ 3,530.17
Legal Fees and Expenses................................................ 5,000.00
Accounting Fees and Expenses........................................... 2,000.00
Miscellaneous.......................................................... 15,000.00
----------
TOTAL............................................................. $25,530.17
==========
The Selling Stockholders will bear the expense of their own legal counsel
in excess of an aggregate of $10,000 which the Company has agreed to pay in
connection with the Private Placement and this registration, 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 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.
II-1
14
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 Securities Purchase Agreement, including the Form of Convertible Debenture and the
Form of Stock Purchase Warrant, dated as of March 15, 1996 by and among the
Registrant and Capital Ventures International (previously filed as Exhibit 99.2 to
the Registrant's Current Report on Form 8-K for the March 21, 1996 event, and
incorporated herein by reference)
99.2 Registration Rights Agreement dated as of March 15, 1996 by and among the
Registrant and Capital Ventures International (previously filed as Exhibit 99.3 to
the Registrant's Current Report on Form 8-K for the March 21, 1996 event, and
incorporated herein by reference)
99.3 Letter Agreement dated as of March 21, 1996 by and among the Registrant and
Capital Ventures International regarding the Securities Purchase Agreement dated
as of March 15, 1996 (filed as Exhibit 99.2 hereto) (previously filed Exhibit 99.4
to the Registrant's Current Report on Form 8-K for the March 21, 1996 event, and
incorporated herein by reference)
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 1933
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.
II-2
15
(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 1933 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 1933 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 1933 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 1933 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, 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 1933 Act
and will be governed by the final adjudication of such issue.
II-3
16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 April 11, 1996.
IMMUNOGEN, INC.
/S/ MITCHEL SAYARE
By:.................................
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 to this registration
statement (including post-effective amendments), 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 of 1933, 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 April 11, 1996
........................................ Directors (principal
MITCHEL SAYARE executive officer)
/S/ FRANK J. POCHER Vice President, Chief April 11, 1996
........................................ Financial Officer, Treasurer
FRANK J. POCHER and Director (principal
financial officer and
principal accounting
officer)
/S/ WALTER A. BLATTLER Senior Vice President, April 11, 1996
........................................ Research and Director
WALTER A. BLATTLER
/S/ MICHAEL EISENSON Director April 11, 1996
........................................
MICHAEL EISENSON
/S/ STUART F. FEINER Director April 11, 1996
........................................
STUART F. FEINER
/S/ DONALD E. O'NEILL Director April 11, 1996
........................................
DONALD E. O'NEILL
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IMMUNOGEN, INC.
INDEX TO EXHIBITS FILED WITH
FORMS 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 Securities Purchase Agreement, including the Form of Convertible
Debenture and the Form of Stock Purchase Warrant, dated as of March 15,
1996 by and among the Registrant and Capital Ventures International
(previously filed as Exhibit 99.3 to the Registrant's Current Report on
Form 8-K for the March 25, 1996 event, and incorporated herein by
reference).............................................................
99.2 Registration Rights Agreement dated as of March 15, 1996 by and among
the Registrant and Capital Ventures International (previously filed as
Exhibit 99.4 to the Registrant's Current Report on Form 8-K for the
March 25, 1996 event, and incorporated herein by reference)............
99.3 Letter Agreement dated as of March 21, 1996 by and among the Registrant
and Capital Ventures International regarding the Securities Purchase
Agreement dated as of March 15, 1996 (filed as Exhibit 99.2 hereto)
(previously filed as Exhibit to the Registrant's Current Report on Form
8-K for the March 21, 1996 event, and incorporated herein by
reference).............................................................
1
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
April 11, 1996
ImmunoGen, Inc.
128 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 3,900,000 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
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
ImmunoGen, Inc.
April 11, 1996
Page 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,
/s/ Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
-------------------------------------
Mintz, Levin, Cohn, Ferris
Glovsky and Popeo, P.C.
1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of ImmunoGen, Inc. on Form S-3 to register 3,900,000 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
September 1, 1995, on our audits of the consolidated financial statements of
ImmunoGen, Inc. as of June 30, 1994 and 1995, and for the years ended June 30,
1993, 1994 and 1995, which report is included in the Company's 1995 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
April 11, 1996
