Exhibit 10.1


 


IMMUNOGEN, INC.


2004
NON-EMPLOYEE DIRECTOR COMPENSATION


AND
DEFERRED SHARE UNIT PLAN


(as
amended through September 16, 2009)


 
WHEREAS, ImmunoGen, Inc. (the “Company”) has previously established plans or arrangements pursuant to which Non-Employee Directors of the Company have been compensated for their services as directors of the Company;
 
WHEREAS, the Board of Directors of ImmunoGen, Inc. (the “Board”) wishes to align director compensation more directly with the shareholders’ interest;
 
WHEREAS, the Board has determined that it is in the interest of the shareholders to establish a new compensation package that will provide for payment and future annual accruals to the Non-Employee Directors;
 
WHEREAS, the Board has determined that it is in the interest of shareholders to allow Non-Employee Directors to defer their fees into an account hereunder;
 
WHEREAS, the Board has determined the terms and conditions of the ImmunoGen, Inc. 2004 Non-Employee Director Compensation and Deferred Share Unit Plan (the “Plan”) and wishes to formally establish the Plan effective July 1, 2004;
 
WHEREAS, on September 5, 2006 the Board determined to make changes to certain of the terms and conditions of the Plan;
 
WHEREAS, on September 16, 2009 the Board has determined to make additional changes to certain of the terms and conditions of the Plan;
 
NOW, THEREFORE, the Company through this instrument establishes the ImmunoGen, Inc. 2004 Non-Employee Director Compensation and Deferred Share Unit Plan, as amended, as follows:
 


Section 1                                             Interpretation


 


1.1                               Purposes


 


The
purposes of the Plan are:


 


(a)                                  to compensate Non-Employee
Directors for their services to the Company;


 


(b)                                 to facilitate holdings of
Deferred Share Units by the Company’s Non-Employee Directors and thereby align
their interests more closely with those of the Company’s shareholders; and


 

















 


(c)                                  to provide a financial
incentive that will help the Company to attract and retain highly qualified
individuals to serve as Non-Employee Directors of the Company.


 


1.2                               Definitions


 


Wherever used in the Plan,
unless otherwise defined, the following terms shall have the meanings set forth
below:


 


(a)                                  “Affiliate” means a corporation which, for purposes of Section 424
of the Code, is a parent or subsidiary of the Company, direct or indirect;


 


(b)                                 “Annual Deferred Share Unit Retainer” has the meaning set forth
in Section 3.1;


 


(c)                                  “Annual Director Fees” has the meaning set forth in
Section 3.2;


 


(d)                                 “Beneficiary” has the meaning set forth in Section 2.5;


 


(e)                                  “Board” or “Board of
Directors” means those individuals who serve from time to time as
the Board of Directors of the Company;


 


(f)                                    “Change
of Control” means the occurrence of any of the following
events:


 


(1)                                  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 or by any employee benefit
plan of the Company) pursuant to a transaction or a series of related
transactions which the Board of Directors does not approve; or


 


(2)                                  Merger/Sale of Assets.  (A) A
merger or consolidation of the Company whether or not approved by the Board of
Directors, 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 patent 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 shareholders 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


 


(3)                                  Change in Board Composition.  A
change in the composition of the Board of Directors, as a result of which fewer
than a majority of the directors are Incumbent Directors.  “Incumbent Directors” shall mean directors
who either (A) 


 


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are directors of the Company as of the Second
Amendment Date, or (B) are elected, or nominated for election, to the
Board of Directors with the affirmative vote 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);


 


(g)                                 “Code” means the United States Internal Revenue Code of
1986, as amended;


 


(h)                                 “Commencement Date” has
the meaning set forth in Section 1.3;


 


(i)                                     “Committee” means the committee of the Board of Directors to which
the Board of Directors has delegated power to act under or pursuant to the
provisions of the Plan, initially the Compensation Committee of the Board;


 


(j)                                     “Common Stock” means shares of the Company’s common stock, $.01
par value per share;


 


(k)                                  “Company” means ImmunoGen, Inc., a Massachusetts
corporation;


 


(l)                                     “Deferred Share Unit” means a unit credited by the
Company to a Non-Employee Director by way of a bookkeeping entry in the books
of the Company, the value of which at any particular date shall be the Fair
Market Value at that date;


 


(m)                               “DSU Account” has the meaning set forth in Section 2.2;


 


(n)                                  “Election Form” means a document substantially in the form
attached as Schedule “A” hereto, as such form may be amended or revised from
time to time;


 


(o)                                 “Fair Market Value” means:


 


(1)                                  If
the Common Stock is listed on a national securities exchange or traded in the
over-the-counter market and sales prices are regularly reported for the Common
Stock, the closing or last price of the Common Stock on the Composite Tape or
other comparable reporting system for the trading day on the applicable date
which is the date of grant, and if such applicable date is not a trading day,
the last market trading day prior to such date;


 


(2)                                  If the Common
Stock is not traded on a national securities exchange but is traded on the
over-the-counter market, if sales prices are not regularly reported for the
Common Stock for the trading day referred to in clause (1), and if bid and
asked prices for the Common Stock are regularly reported, the mean between the
bid and the asked price for the Common Stock at the close of trading in the
over-the-counter market for the trading day on which Common Stock was traded on  the applicable date which is the date of
grant, and if such applicable date is not a trading day, the last market
trading day prior to such date; and


 


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(3)                                  If the Common
Stock is neither listed on a national securities exchange nor traded in the
over-the-counter market, such value as the Committee, in good faith, shall
determine with respect to any particular date;


 


(p)                                 “First
Amendment Date” has the meaning set forth in Section 1.3;


 


(q)                                 “First Year” means the first 12 month period during which an
individual first serves as a Non-Employee Director of the Company commencing
after the Commencement Date of the Plan. 
Only individuals elected to serve on the Board who are within their
first twelve months of service on or after the Commencement Date shall be
eligible for First Year credits to their DSU Account under this Plan;


 


(r)                                    “Fiscal Year” means the twelve month period beginning on July 1
and ending on June 30 of any year;


 


(s)                                  “Lead Director” means a Non-Employee Director appointed by
the Board to such position;


 


(t)                                    “Lead Director Fees” has the meaning set forth in
Section 3.2;


 


(u)                                 “Non-Employee Director” means a member of the Board
of Directors who is not an employee of the Company or any Affiliate of the
Company;


 


(v)                                 “Plan” means this ImmunoGen, Inc. 2004 Non-Employee
Director Compensation and Deferred Share Unit Plan, as amended and restated
from time to time;


 


(w)                               “Plan Year” means the twelve month period beginning on July 1
and ending on June 30 of any year;


 


(x)                                   “Quarter” means a fiscal quarter of the Company which, until
changed by the Company, shall be the three-month periods ending September 30,
December 31, March 31 and June 30 in any calendar year;


 


(y)                                 “Redemption Amount” has the meaning set forth in Section 4.1;


 


(z)                                   “Redemption Date” has the meaning set forth in Section 4.1;


 


(aa)                            “Second
Amendment Date” has the meaning set forth in Section 1.3;


 


(bb)                          “Second Year” means that Plan Year, or portion thereof, commencing
upon the first anniversary of appointment of a Non-Employee Director and ending
on the last day of the Plan Year in which such anniversary occurs.  Only individuals eligible to receive First
Year credits to their DSU Account under this Plan shall be eligible to receive
Second Year credits to their DSU Account under this Plan provided however, that
any individual who first became a Non-Employee Director in 2004, shall be
entitled to receive Second Year credits even if First Year credits were not
received;


 


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(cc)                            “Stock
Plan” means the Company’s 2006 Employee, Director and Consultant Equity
Incentive Plan, as the same may be amended from time to time;


 


(dd)                          “Termination Date” means, with respect to a Non-Employee
Director, the date upon which such Non-Employee Director ceases to be a member
of the Board for any reason whatsoever, including death or disability; and


 


(ee)                            “Termination Value” means the Fair Market Value of the Common
Stock on the Termination Date.


 


1.3                               Commencement Date, First Amendment Date
and Second Amendment Date


 


The Plan was
initially adopted effective as of July 1, 2004 (the “Commencement Date”).  The Plan, as initially amended, was effective
on November 15, 2006 (the “First Amendment Date”).  The Plan, as subsequently amended, shall be
effective on September 16, 2009 (the “Second Amendment Date”).


 


1.4                               Eligibility


 


Each Non-Employee
Director shall be eligible to participate in the Plan.


 


1.5                               Construction


 


All references in
the Plan to the masculine shall also include the feminine and all references to
the singular shall also include the plural and vice versa, as the context shall
require.  If any provision of the Plan is
determined to be illegal or invalid for any reason, in whole or in part, such
illegality or invalidity shall not affect the remaining parts of the Plan and
the Plan shall be construed and enforced as if the illegal or invalid provision
had not been included.  Headings wherever
used herein are for reference purposes only and do not limit or extend the
meaning of the provisions contained herein. 
A reference to a “Section” means a section of the Plan, unless expressly
stated otherwise.


 


1.6                               Governing Law


 


The Plan shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.


 


Section 2                                             Administration of the Plan


 


2.1                               Administration


 


The Committee
shall have complete discretionary authority and power to (i) construe,
interpret and administer the Plan and any agreement or instrument entered into
under the Plan, (ii) establish, amend and rescind any rules and
regulations relating to the Plan, (iii) make any other determinations that
the Committee deems necessary or desirable for the administration of the Plan,
including without limitation decisions regarding eligibility to participate and
the amount and value of any payment, and (iv) delegate to other persons
any duties and 


 


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responsibilities relating to
the administration of the Plan.  The
Committee may correct any defect or supply any omission or reconcile any
inconsistency or ambiguity in the Plan in the manner and to the extent the
Committee deems, in its sole and absolute discretion, necessary or
desirable.  No member of the Committee
shall be liable for any action or determination made in good faith.  Any decision of the Committee with respect to
the administration and interpretation of the Plan shall be binding and
conclusive for all purposes and on all persons, including the Company, all
Non-Employee Directors and any other person claiming an entitlement or benefit
through any Non-Employee Director.  All
expenses of administration of the Plan shall be borne by the Company.


 


2.2                               DSU Accounts


 


The Company shall maintain
in its books and records an account for each Non-Employee Director (a “DSU
Account”) recording at all times the number of Deferred Share Units credited to
a Non-Employee Director.  Upon payment in
satisfaction of Deferred Share Units credited to a Non-Employee Director in the
manner described herein, such Deferred Share Units shall be cancelled.  After the end of each Quarter, the Company
shall provide each Non-Employee Director with a written statement showing the
balance in such Non-Employee Director’s DSU Account as at the end of the
applicable Quarter.


 


2.3                               Credit for Dividends on Deferred Share
Units


 


When and if cash dividends
are paid on the Common Stock of the Company, a Non-Employee Director’s DSU
Account shall be credited with dividend equivalents in the form of additional
Deferred Share Units.  Such dividend
equivalents shall be credited on the dividend payment date and shall be
computed by dividing (a) the amount obtained by multiplying the amount of
the dividend declared and paid per share of Common Stock by the number of
Deferred Share Units credited to the Non-Employee Director’s DSU Account on the
record date for the payment of such dividend, by (b) the Fair Market Value
of the Common Stock on the dividend payment date for such dividend, with
fractions of Deferred Share Units so credited computed to four decimal points
rounded down.


 


2.4                               Share Adjustments and Reorganizations


 


If (a) there is any
stock split, stock consolidation, reclassification, recapitalization or similar
event affecting the Common Stock, (b) the Common Stock is exchanged in
connection with a reorganization, including any merger, amalgamation, consolidation
of the Company or similar event, or a sale by the Company of all or
substantially all of its assets, for a different number or class of shares or
other securities of the Company or for shares or other securities of any other
Company, (c) new, different or additional shares or other securities of
the Company or of another company are received by holders of the Common Stock,
or (d) any distribution is made to the holders of Common Stock (other than
a cash dividend), then the Committee shall make such adjustments to the
Deferred Share Units credited to the Non-Employee Directors under the Plan as
the Committee deems appropriate in its sole discretion.  Except as provided above, the issuance by the
Company of any shares of the Company, or any rights, warrants, options or other
securities convertible into or exchangeable for any shares of the Company,
shall not affect the number of Deferred Share Units credited pursuant to the
terms of the Plan.


 


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2.5                               Designation of Beneficiary


 


Upon his election
or appointment to the Board, subject to applicable law, each Non-Employee
Director shall designate an individual as his beneficiary to receive any
benefits that are payable under the Plan upon the death of such Non-Employee
Director (the “Beneficiary”).  The
Non-Employee Director may, subject to applicable laws, change his Beneficiary
at any time or from time to time.  Where
no Beneficiary has been validly designated by the Non-Employee Director, or the
Beneficiary does not survive the Non-Employee Director, the Non-Employee
Director’s legal representative shall be his Beneficiary.  In the event of a Non-Employee Director’s
death, the Beneficiary shall be entitled to exercise the rights of, and receive
the benefits payable to, the Non-Employee Director under Section 5.


 


Section 3                                             Compensation


 


3.1                               Annual Deferred Share Unit Retainers


 


(a)                                  Subject
to the other provisions of this Plan, for each Plan Year beginning with the
Commencement Date, each Non-Employee Director shall have credited to his DSU
Account as of the first day his participation in the Plan commences during a
Plan Year an amount determined in accordance with this Section 3.1(a) as
an Annual Deferred Share Unit Retainer for his services to the Board.  Any fractional Deferred Share Unit shall be
calculated to four decimal points rounded down. 
All amounts credited may be subject to such conditions as may be imposed
by the Committee at the time it is credited. 
From the Commencement Date until the First Amendment Date, the following
shall be credited for Non-Employee Directors as an Annual Deferred Share Unit
Retainer:


 


(i)                                     For
the First Year there shall be credited for each new Non-Employee Director
Deferred Share Units to his DSU Account. The dollar value of such Deferred
Share Units will be established from time to time by the Committee.


 


(ii)                                  For
the Second Year there shall be credited for each new Non-Employee Director who
received a First Year credit in accordance with the foregoing Deferred Share
Units to his DSU Account, which amount shall be pro rated based upon the number
of whole months remaining between the beginning of the Second Year and the end
of the Plan Year in which such Second Year falls. The dollar value of such
Deferred Share Units will be established from time to time by the Committee.


 


(iii)                               For
existing directors, during each Plan Year, there shall be credited Deferred
Share Units to their respective DSU Accounts. The dollar value of such Deferred
Share Units will be established from time to time by the Committee.  Unless otherwise provided by the Committee,
the Annual Deferred Share Unit Retainer credited herein shall be pro rated to
reflect the actual number of whole months that the Non-Employee Director has
served on the Board during the Plan Year in which such amount is credited.


 


(iv)                              Non-Employee
Directors shall receive an Annual Deferred Share Unit Retainer for any Plan
Year only under one of either (i), (ii) or (iii) above; that is, a
Non-


 


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Employee Director
receiving credits under (i) above during a Plan Year shall not be eligible
for credits during that Plan Year under either (ii) or (iii) above.


 


(v)                                 All
amounts credited as an Annual Deferred Share Unit Retainer in (i) (ii) or
(iii) shall vest ratably in monthly increments at the end of each month
after the amount is credited to the DSU Account.  Any Non-Employee Director who ceases to be a
member of the Board for any reason during a Plan Year shall forfeit any amount
credited to the DSU Account that is not, as of the date of such Termination
Date, vested in accordance with the terms herein.


 


(b)                                 Subject
to the other provisions of this Plan, beginning with the First Date, each
Non-Employee Director shall have credited to his DSU Account an amount
determined in accordance with this Section 3.1(b) as an Annual
Deferred Share Unit Retainer for his services to the Board.  Any fractional Deferred Share Unit shall be
calculated to four decimal points rounded down. 
All amounts credited may be subject to such conditions as may be imposed
by the Committee at the time it is credited. 
As of the First Amendment Date, the following shall be credited for
Non-Employee Directors as an Annual Deferred Share Unit Retainer:


 


(i)                                     For
each Non-Employee Director who was credited Deferred Share Units on July 1,
2006 and is a Non-Employee Director on the First Amendment Date, there shall be
credited additional Deferred Share Units to his DSU Account on the First
Amendment Date. The dollar value of such Deferred Share Units shall be
$17,500.  Each such Non-Employee Director
shall be credited additional Deferred Share Units to his DSU Account on the
earlier of November 20 of such year or the date of each annual meeting of
stockholders occurring after the First Amendment Date.  The dollar value of such Deferred Share Units
shall be $30,000 or such other amount as may be determined by the Committee
from time to time (the “Continuing Retainer”).


 


(ii)                                  For
each Non-Employee Director who becomes a Non-Employee Director for the first
time on or after November 14, 2006, there shall be credited Deferred Share
Units to his DSU Account on the later of the First Amendment Date or the date
the Non-Employee Director is first appointed or elected to the Board.  The dollar value of such Deferred Share Units
shall be $65,000 or such other amount as may be determined by the Committee
from time to time (the “Initial Retainer”). 
On the date that is one year from the date of the payment of the Initial
Retainer, each such Non-Employee Director who continues to be a Non-Employee
Director shall be credited additional Non-Employee Director Deferred Share
Units to his DSU account.  The amount to
be credited shall be the Continuing Retainer pro rated based upon the number of
whole months remaining between the date of payment and the last day of the
following October.  From and after that
date each such Non-Employee Director shall be credited additional Deferred
Share Units to his DSU Account on the earlier of November 20 of such year
or the date of each annual meeting of stockholders.  The dollar value of such Deferred Share Units
shall be the Continuing Retainer.


 


(iii)                               All
amounts credited as an Annual Deferred Share Unit Retainer in (i) and (ii) above
shall vest ratably over a three year period in quarterly increments at the end
of each quarter after the amount is credited to the DSU Account.  Notwithstanding the


 


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foregoing,
effective as of the Second Amendment Date, (A) the vesting of all amounts
credited as an Annual Deferred Share Unit Retainer in (i) and (ii) above
(other than the Initial Retainer) shall be accelerated and shall vest in full
upon the later to occur of (1) the Second Amendment Date or (2) the
first anniversary of the date such amount was credited to the DSU Account, and (B) the
vesting of all amounts credited as an Annual Deferred Share Unit Retainer in (i) and
(ii) above shall be accelerated and shall vest in full immediately prior
to the occurrence of a Change of Control. 
Any Non-Employee Director who ceases to be a member of the Board for any
reason shall forfeit any amount credited to the DSU Account that is not, as of
the date of such Termination Date, vested in accordance with the terms herein.


 


(c)                                  Anything
contained in this Plan to the contrary notwithstanding, no Deferred Stock Units
shall be credited to the Non-Employee Directors’ DSU Accounts under this Plan
with respect to any period from and after November 11,
2009.


 


3.2                               Annual Director Fees and Lead Director
Fees


 


(a)                                  Each
Non-Employee Director shall be paid $25,000 per year, or such other amount as
may be determined by the Committee from time to time, for attendance at
meetings for each Fiscal Year (prorated for any partial Fiscal Year).  The Lead Director shall be paid an additional
$40,000 per year, or such other amount as may be determined by the Committee
from time to time, for the services he performs to fulfill the duties of Lead
Director. From and after the First Amendment Date, each Non-Employee Director
shall be paid $35,000 per year, or such other amount as may be determined by
the Committee from time to time, for attendance at meetings for each Fiscal
Year (prorated for any partial Fiscal Year) and the Lead Director shall be paid
an additional $30,000 per year, or such other amount as may be determined by
the Committee from time to time, for the services he performs to fulfill the
duties of Lead Director.  In addition,
commencing on the First Amendment Date, chairpersons of the Audit, Compensation,
and Nominating and Governance Committees shall be paid $15,000, $9,000 and
$9,000 per year, respectively, and each member of the Audit, Compensation, and
Nominating and Governance Committee, other than the chairpersons, shall be paid
$8,000, $5,000 and $5,000 per year, respectively, or such other amount as may
be determined by the Committee from time to time, for attendance at committee
meetings for each Fiscal Year (prorated for any partial Fiscal Year).  One-fourth of such payments shall be made to
each Non-Employee Director and the Lead Director quarterly for each quarter in
which he remains a Non-Employee Director, in arrears.


 


(b)                                 In
addition, each Non-Employee Director shall be compensated for their reasonable
expenses incurred for attending meetings and otherwise acting on the Company’s
behalf during their tenure as a Non-Employee Director.  Any reimbursement in one calendar year shall
not affect the amount that may be reimbursed in any other calendar year and a
reimbursement (or right thereto) may not be exchanged or liquidated for another
benefit or payment.  Any business expense
reimbursements subject to Section 409A of the Code shall be made no later
than the end of the calendar year following the calendar year in which such
business expense is incurred by the Non-Employee Director.


 


(c)                                  Each
Non-Employee Director shall have the right to elect to defer any part or all


 


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of the Annual
Director Fees and Lead Director Fees described herein in the form of Deferred
Share Units in an amount equal to the Fair Market Value of Deferred Share Units
equal to the amount of cash deferred. 
Such Deferred Share Units shall be fully vested upon being credited to
the individual’s DSU Account and the Non-Employee Director’s entitlement to the
redemption of such Deferred Share Units shall be governed by the terms of this
Plan.


 


(d)                                 Anything
contained in this Plan to the contrary notwithstanding, no payments will be
made to the Non-Employee Directors under paragraphs (a) and (b) above
with respect to any period or meeting occurring from and after November 12,
2009.


 


3.3                               Timing of Election


 


Each
Non-Employee Director shall, if he chooses to defer Annual Director Fees in
accordance with Section 3.2 above, within 30 days following either the
Commencement Date, or his first election or appointment to the Board, if later,
in respect of amounts payable during the remainder of such calendar year, and
thereafter by December 31 in respect of amounts payable on or after January 1
of the next calendar year, complete, sign and deliver an Election Form to
the Treasurer of the Company indicating his election for the following calendar
year.  Any such election shall be
prospective only for compensation attributable to services performed after the
effective date of such election and any amounts covered by such election shall
be prorated as necessary.  If
no timely election has been made, then the individual shall be deemed to have
elected to receive his Annual Director Fees in cash.  Notwithstanding the foregoing, an election
(or non-election) made pursuant to this Section 3.3 shall remain in effect
for subsequent calendar years until it is changed by the completion, signature
and delivery to the Treasurer of the Company of a new Election Form, in
accordance with the terms of the Plan.


 


Section 4                                             Redemption of DSUs


 


4.1                               Redemption Process


 


Upon any
termination of a Non-Employee Director, the Company shall redeem all fully
vested Deferred Share Units credited to the DSU Account of such Non-Employee
Director.  The Company shall pay the
relevant Non-Employee Director within
five business days of the Termination Date (the “Redemption Date”) the amount
(the “Redemption Amount”) which shall be obtained by multiplying (a) the
number of Deferred Share Units to be redeemed by (b) the Termination
Value, less any applicable withholding or similar taxes, and shall be fully
discharged in so doing and such Deferred Share Units shall, as provided for in Section 2.2,
be cancelled.  The Redemption Amount
shall be paid by check; provided, however if the termination is after the First
Amendment Date then the Redemption Amount shall not be paid in cash but shall
be paid in shares of Common Stock of the Company pursuant to the Company’s
Stock Plan.


 


If any of the
benefits or the delivery of cash or shares of Common Stock set forth in this
Plan are deferred compensation under Section 409A of the Code, any
termination of services triggering payment of such benefits must constitute a “separation
from service” under Section 409A of the Code before, subject to Section 5.7
below, distribution of such benefits can commence or the delivery of cash or
shares of Common Stock can occur.  For
purposes of


 


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clarification, this paragraph shall not cause
any forfeiture of benefits on the part of the Non-Employee Director, but shall
only act as a delay until such time as a “separation from service” occurs.


 


Section 5                                             General


 


5.1                               Unfunded Plan


 


The Plan is designed to be an unfunded arrangement.  It is specifically recognized by both the Company and any Non-Employee Director that this Plan is only a general corporate commitment and that each Participant must rely upon the general credit of the Company for the fulfillment of its obligations.  Under all circumstances the rights of participants in this Plan to any asset held by the Company will be no greater than the rights expressed in this Plan.  Nothing contained in this Plan will constitute a guarantee by the Company that the assets of the Company will be sufficient to pay any benefits under this Plan or would place the participant in a secured position ahead of general creditors of the Company.  The Plan will not create any lien, claim, encumbrance, right, title or other interest of any kind whatsoever in any participant in any asset held by the Company.  No specific assets of the Company have been or will be set aside, or will in any way be transferred to any trust or will be pledged in any way for the performance of the Company’s obligations under this Plan which would remove those assets from being subject to the general creditors of the Company.
 


5.2                               Successors and Assigns


 


The Plan shall be
binding on the Company and its successors and assigns and each Non-Employee Director and his heirs and
legal representatives and on any receiver or trustee in bankruptcy or
representative of creditors of the Company or Non-Employee
Director, as the case may be.


 


5.3                               Amendment or Termination of the Plan


 


The Board may
amend or terminate the Plan at any time as it deems necessary or appropriate,
but no such amendment or termination shall, without the consent of the Non-Employee Director or unless required
by law, adversely affect the rights of a Non-Employee
Director with respect to vested Deferred Share Units to which the Non-Employee Director is then entitled
under the Plan.


 


If the Board
terminates the Plan, no additional Deferred Share Units will be credited to the
DSU Account of a Non-Employee
Director after the effective date of such termination, but previously credited
Deferred Share Units shall remain outstanding, be entitled to dividend
equivalents as provided under the Plan, and be paid in accordance with the
terms and conditions of the Plan existing at the time of termination.  The Plan will finally terminate for all
purposes when the last remaining Non-Employee
Director receives payment of all Deferred Share Units which have been credited
to his DSU Account.


 


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5.4                               Applicable Trading Policies


 


The Committee and
each Non-Employee Director will
ensure that all actions taken and decisions made by the Committee or the Non-Employee Director, as the case may
be, pursuant to the Plan comply with all applicable laws, including securities
and income tax laws, and all applicable policies, guidelines or similar
requirements of the Company relating to conflicts of interest, business and
ethical conduct.


 


5.5                               Limitations on Rights of Non-Employee
Directors


 


(a)                                  Except
as specifically set out in the Plan, no Non-Employee Director or any other
person shall have any claim or right to any cash or other benefit in respect of
Deferred Share Units credited pursuant to the Plan.


 


(b)                                 Any and all of
the rights of the Non-Employee Directors respecting Deferred Share Units or
other benefits under the Plan shall not be transferable or assignable other
than by will or the laws of descent and distribution, nor shall they be
pledged, encumbered or charged, and any attempt to do so shall be void.


 


(c)                                  Neither the Plan
nor any award hereunder shall be construed as conferring upon a Non-Employee
Director a right to be retained as a member of the Board or a claim or right to
any future awards or other benefits under the Plan.


 


(d)                                 Under no
circumstances shall Deferred Share Units be considered Common Stock of the
Company nor shall they entitle any Non-Employee Director or other person to
exercise any voting rights or any other rights attaching to the ownership of
Common Stock, nor shall any Non-Employee Director or other person be considered
the owner of Common Stock by virtue of this Plan.


 


(e)                                  Any liability of
the Company to any Non-Employee Director with respect to receipt of Deferred
Share Units shall be based solely upon contractual obligations created by the
Plan.  Neither the Committee nor the
Board shall be liable for any actions taken in accordance with the terms of the
Plan.


 


5.6                               Compliance with Law


 


The obligations
of the Company with respect to the delivery of Deferred Share Units pursuant to
the terms of the Plan are subject to compliance with all applicable laws and
regulations.  In connection with the
Plan, each Non-Employee Director shall
comply with all applicable laws and regulations and shall furnish the Company
with any and all information and undertakings as may be required to ensure
compliance therewith.


 


5.7                               Applicable Taxes and Deductions


 


The Company shall
be authorized to deduct from any amount paid or credited hereunder such taxes
and other amounts as may be required by applicable law or regulation in such
manner as it determines appropriate.  Any
reduction n accordance with the foregoing shall, to the extent


 


12

















 


applicable, be effected in
accordance with Section 409A of the Code and Treasury Regulation Sections
1.409A-3(j)(4)(vi) or 1.409A-3(j)(4)(xi).


 


Notwithstanding
anything to the contrary herein, if the Non-Employee Director is a “key
employee” (as defined in Section 409A of the Code) as of the date the
Non-Employee Director ceases to be a member of the Company’s Board of
Directors, any issuance pursuant to Section 4.1 upon a termination of
services shall, to the extent this requirement of Section 409A of the Code
is applicable, be delayed to the extent necessary to avoid the imposition of
excise taxes or other penalties under Section 409A of the Code until the
date which is the first business day after six (6) months have
elapsed since the Non-Employee Director is no longer providing service for any
reason other than death.


 


13

















 


SCHEDULE A


 


IMMUNOGEN, INC.


2004 NON-EMPLOYEE DIRECTOR COMPENSATION


AND DEFERRED SHARE UNIT PLAN, as amended


 


CALENDAR YEAR 2007 INDIVIDUAL ELECTION FORM


 


The undersigned hereby confirms that I have read, and agree to abide
by, the terms of the ImmunoGen, Inc. 2004 Non-Employee Director
Compensation and Deferred Share Unit Plan, as amended (the “Plan”). I
understand that I am required to make annual elections in accordance with the
terms of the Plan.  In accordance with
those terms, I make the following elections with respect to any compensation to
be earned by me as a Non-Employee Director in calendar year 2007:


 


Annual Director Fee Election.  I may elect to receive all of such
compensation in cash, Deferred Stock Units or a combination thereof.


 


Accordingly, I elect to receive my Annual Director
Fees as follows:


 


1.                                                 %
in Cash


 


2.                                                 %
in Deferred Stock Units


 


100 % Total


 


I understand that by electing Deferred Stock Units as described in the
Plan, I have agreed to defer the payment of any proceeds from such Deferred
Stock Units until such time as my services as a Non-Employee Director of
ImmunoGen, Inc. are terminated and that the Deferred Stock Units shall
remain part of the general assets of ImmunoGen, Inc. until I receive
payment of the same.


 


 


	
   

  	
   

  	
   

  
	
   

  	
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