On May 1, 2023, ImmunoGen, Inc. (the "Company") entered into an exchange agreement (the "Exchange Agreement") with RA Capital Healthcare Fund, L.P. (the "Shareholder") pursuant to which the Shareholder agreed to exchange 21,853,000 shares of the Company’s Common Stock, par value $.01 per share (the "Common Stock"), for 21,853 shares of newly designated Series A Convertible Preferred Stock, par value $.01 per share (the "Preferred Stock") (the "Exchange") (Filing, 8-K, ImmunoGen, MAY 1, 2023, View Source [SID1234630841]). The preferences, rights, and limitations of the Preferred Stock are set forth in a Certificate of Designation (the "Certificate of Designation") attached to the Exchange Agreement. In connection with the Exchange, on May 2, 2023, the Company filed Articles of Amendment to the Company’s Articles of Organization, as amended, which included the Certificate of Designation, with the Secretary of the Commonwealth of Massachusetts.
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Each share of the Preferred Stock is convertible into 1,000 shares of Common Stock at the option of the holder at any time until the tenth anniversary of the issuance of the Preferred Stock, at which time the Preferred Stock will automatically convert to Common Stock. In addition, the Company has the right to request the conversion of the Preferred Stock into Common Stock in certain circumstances. The conversion of the Preferred Stock into Common Stock is subject to certain limitations, including that the holder will be prohibited from converting the Preferred Stock into Common Stock if, as a result of such conversion, the holder (together with its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the holder for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended) would beneficially own a number of shares of Common Stock above a conversion blocker (the "Conversion Blocker"), which is initially set at 9.99% of the total Common Stock then issued and outstanding immediately following the conversion of such shares of Preferred Stock. Holders of the Preferred Stock are permitted to increase or decrease the Conversion Blocker to an amount not to exceed 19.99% upon 61 days’ prior notice from the holder to the Company.
Shares of the Preferred Stock will have no voting rights, except as required by law and except that the affirmative vote of the holders of the then outstanding Preferred Stock will be required to amend the terms of the Preferred Stock, increase the number of authorized shares of Preferred Stock or enter into an agreement with respect to any of the foregoing. The holders of the Preferred Stock are entitled to receive a nominal preference of $0.001 per share of Preferred Stock upon the liquidation, dissolution, or winding up of the Company (the "Liquidation Preference") before any payments are made or any assets are distributed to holders of the Common Stock. However, if the amount payable to holders of the Common Stock upon the Company’s liquidation, dissolution, or winding up is greater than the Liquidation Preference on a per share basis, then the holders of the Preferred Stock will instead receive, on a per-share and as-converted basis, the same assets that are distributed to holders of the Common Stock. In the event of certain fundamental transactions, including a merger, holders of the Preferred Stock will automatically receive, as consideration for the Preferred Stock, the same kind and amount of securities, cash, or property as the holders of the Preferred Stock would have been entitled to receive had the holders of the Preferred Stock instead held Common Stock immediately prior to the occurrence of the fundamental transaction, subject to certain exceptions.
The Exchange is expected to close on or around May 3, 2023. The Preferred Stock will be issued without registration under the Securities Act of 1933, as amended (the "Securities Act"), in reliance on the exemption from registration contained in Section 3(a)(9) of the Securities Act.
The foregoing description of the Preferred Stock and the Exchange Agreement is not complete and is qualified in its entirety by reference to the full text of the Articles of Amendment, which includes the Certificate of Designation, and the Exchange Agreement, which are filed as Exhibits 3.1 and 10.1 to this Current Report on Form 8-K and are incorporated by reference herein.