Exhibit 10.2
SEVERANCE
AGREEMENT
This Agreement is entered into as of the 27th
day of November, 2007 (the “ Effective Date
” ) by and between ImmunoGen, Inc., a Massachusetts
corporation (the “Company” ) and John A.
Tagliamonte (the “Executive” )
.
WHEREAS, the Executive is the Vice President,
Business Development (“VP”) of the Company;
WHEREAS, the Company recognizes that the
Executive’s service to the Company is very important to the
fixture success of the Company;
WHEREAS, the Executive desires to enter into
this Agreement to provide the Executive with certain financial
protection in the event that his employment terminates under
certain conditions following a change in control of the Company;
and
WHEREAS the Board of Directors of the Company
(the “Board” )
has determined that it is in the best interests of the Company to
enter into this Agreement.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Executive hereby agree as
follows:
1.
Definitions .
(a)
Cause . For purposes of this Agreement,
“Cause” shall
mean that Executive has (i) intentionally committed an act or
omission that materially harms the Company; (ii) been grossly
negligent in the performance of Executive’s duties to the
Company; (iii) willfully failed or refused to follow the
lawful and proper directives of the Board or the CEO;
(iv) been convicted of, or pleaded guilty or nolo
contendre, to a felony; (v) committed an act involving
moral turpitude; (vi) committed an act relating to the
Executive’s employment or the Company involving, in the good
faith judgment of the Board, material fraud or theft;
(vii) breached any material provision of this Agreement or any
nondisclosure or non-competition agreement between Executive and
the Company, as all of the foregoing may be amended prospectively
from time to time; or (viii) breached a material provision of
any code of conduct or ethics policy in effect at the Company, as
all of the foregoing may be amended prospectively from time to
time.
(b)
Change in Control . For purposes of this
Agreement, a “ Change in Control ” shall
mean the occurrence of any of the following events; provided that
“Change in Control” shall be interpreted in a manner,
and limited to the extent necessary, so that it will not cause
adverse tax consequences for either party with respect to
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code” )
, and the provisions of Treasury Notice 2005-1, and any
successor statute, regulation and guidance thereto:
(i)
Ownership. Any “Person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended) becomes the “Beneficial Owner” (as
defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing 50% or more of the total
voting power represented by the Company’s then
outstanding voting securities (excluding for
this purpose any such voting securities held by the Company or its
Affiliates (as defined in the Company’s 2006 Employer,
Director and Consultant Equity Incentive Plan) or by any employee
benefit plan of the Company) pursuant to a transaction or a series
of related transactions which the Board does not approve;
or
(ii)
Merger/Sale of Assets. (A) A merger or consolidation of
the Company whether or not approved by the Board, other than a
merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or the parent of
such corporation) at least 50% of the total voting power
represented by the voting securities of the Company or such
surviving entity or parent of such corporation, as the case may be,
outstanding immediately after such merger or consolidation; or
(B) the stockholders of the Company approve an agreement for
the sale or disposition by the Company of all or substantially all
of the Company’s assets; or
(iii)
Change in Board Composition. A change in the composition of
the Board, as a result of which fewer than a majority of the
directors are Incumbent Directors. “Incumbent
Directors” shall mean directors who either (A) are
directors of the Company as of November 11, 2006, or
(B) are elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall not
include an individual whose election or nomination is in connection
with an actual or threatened proxy contest relating to the election
of directors to the Company).
(c)
Disability . For purposes of this
Agreement, “Disability” shall mean
that Executive (i) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than
twelve (12) months, or (ii) is, by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months, receiving income replacement
benefits for a period of not less than three (3) months under
a Company-sponsored group disability plan. Whether the Executive
has a Disability will be determined by a majority of the Board
based on evidence provided by one or more physicians selected by
the Board and approved by Executive, which approval shall not be
unreasonably withheld.
(d)
Good Reason . For purposes of this
Agreement, “Good
Reason” shall mean the occurrence of one or more of
the following without the Executive’s consent: (i) a
change in the principal location at which the Executive performs
his duties for the Company to a new location that is at least forty
(40) miles from the prior location; (ii) a material change in
the Executive’s authority, functions, duties or
responsibilities as SVP of the Company, which would cause his
position with the Company to become of less responsibility,
importance or scope than his position on the date of this Agreement
or as of any subsequent date prior to the Change in Control,
provided, however, that such material change is not in connection
with the termination of the Executive’s employment by the
Company for Cause or death or Disability and further provided that
it shall not be considered a material change if the Company becomes
a subsidiary of another entity and Executive continues to
2
hold the position
of VP in the subsidiary; or (iii) a reduction in the
VP’s annual base salary or (iv) a reduction in the
VP’s target annual bonus as compared to the target annual
bonus set for the previous fiscal year.
2.
Term of Agreement . The term of this Agreement (the
“Term”) shall commence on the Effective Date and shall
continue in effect for two (2) years; provided ,
however , that commencing on second anniversary of the
Effective Date and continuing each anniversary thereafter, the Term
shall automatically be extended for one (1) additional year
unless, not later than nine (9) months before the conclusion
of the Term, the Company or the Executive shall have given notice
not to extend the Term; and further provided, however, that if a
Change in Control shall have occurred during the Term, the Term
shall expire on the last day of the twenty-fourth (24th) month
following the month in which such Change in Control occurred.
Notice of termination or termination of this Agreement shall
not constitute Cause or Good Reason (both terms as defined
above).
3.
Termination; Notice; Severance Compensation.
(a)
In the event that within a period of two (2) months before or
two (2) years following the consummation of a Change in
Control the Company elects to terminate the Executive’s
employment other than for Cause (but not including termination due
to the Executive’s Disability), then the Company shall give
the Executive no less than sixty (60) days advance notice of such
termination (the “Company’s Notice Period”);
provided that the Company may elect to require the Executive
to cease performing work for the Company so long as the Company
continues the Executive’s full salary and benefits during the
Company’s Notice Period.
(b)
In the event that within a period of two (2) months before or
two (2) years following the consummation of a Change in
Control the Executive elects to terminate his employment for Good
Reason, then the Executive shall give the Company no less than
thirty (30) days and no more than (60) days advance
| 
