UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
(Amendment No. 1)
Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
For the period ended December 31, 1994
Commission File Number: 0-12104
IMMUNOMEDICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 61-1009366
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
300 American Road, Morris Plains, New Jersey 07950
(Address of principal executive offices) (Zip code)
(201) 605-8200
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
[X] Yes [ ] No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date.
As of January 31, 1995, there were 30,055,469 shares of the registrant's
common stock outstanding.
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PART II - Other Information:
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
4.2 Certificate of Designation of the Registrant's Series B
Convertible Preferred Stock
10.19 Convertible Stock Purchase Agreement, dated as of
January 6, 1995, between the Registrant and the
purchasers named therein.
(b) Reports on Form 8-K
The Registrant filed Current Reports on Form 8-K, dated
January 18, 1995 and February 7, 1995 with respect to
Item 5 - Other Events.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
IMMUNOMEDICS, INC.
(Registrant)
DATE: May 19, 1995
/s/ David M. Goldenberg
David M. Goldenberg,
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
DATE: May 19, 1995
/s/ Amy Factor
Amy Factor,
Executive Vice President
(Principal Accounting Officer)
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
(the "Agreement") dated as of January 6, 1995 between Immunomedics,
Inc., a corporation organized and existing under the laws of the State of
Delaware (the "Company") and the persons listed on the signature page
hereto (each, a "Purchaser" and collectively, the "Purchasers").
WHEREAS, the Company desires to issue and sell to the
Purchasers and the Purchasers desire to acquire 150,000 shares of the
Company's Series B Convertible Preferred Stock, par value $0.01 per
share (the "Series B Preferred").
IN CONSIDERATION of the mutual covenants contained
in this Agreement, the Company and the Purchasers agree as follows:
ARTICLE I
Purchase and Sale of Series B Preferred
1.1 Purchase and Sale of Series B Preferred. Upon the terms
and conditions set forth herein, the Company shall issue and sell to each
of the Purchasers, and each of the Purchasers shall purchase, such
number of shares (the "Shares") of Series B Preferred as is set forth
opposite such Purchaser's name on Schedule 1 hereto. The Series B
Preferred shall contain the terms and provisions set forth in the
Certificate of Designation (the "Certificate of Designation"), a copy is
which is attached hereto as Exhibit A.
1.2 Purchase Price. The aggregate purchase price for the
Shares purchased by each Purchaser (the "Aggregate Purchase Price")
shall equal the product of the number of Shares purchased by such
Purchaser and $50.00 (the "Purchase Price Per Share").
1.3 The Closing.
(a) The closing of the purchase and sale of the Shares
(the "Closing") shall take place at the offices of Warshaw Burstein Cohen
Schlesinger & Kuh, 555 Fifth Avenue, New York, New York 10017 at
10:00 a.m., New York City on January 17, 1995 or on such other earlier
date as the Purchasers and the Company may agree or as provided in
Section 1.3(b). The date of the Closing is hereinafter referred to as the
Closing Date.
(b) At the Closing, (i) the Company shall deliver to each
Purchaser or its representative one or more stock certificates
representing the Shares, which shall be free of restrictive legends or
"stop transfer" restrictions, registered in the name of the Purchaser and
(ii) each Purchaser shall deliver to the Company the Aggregate Purchase
Price as determined pursuant to this Article I in immediately available
funds by wire transfer to such account as shall be designated in writing
by the Company. In addition, each of the Company and the Purchasers
shall deliver all documents, instruments and writings required to be
delivered by any of them pursuant to this Agreement at or prior to
Closing.
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ARTICLE II
Representations and Warranties
2.1 Representations, Warranties and Agreements of the
Company. The Company hereby makes the following representations,
warranties and agreements with and to the Purchasers:
(a) Organization and Qualification. The Company is a
corporation duly and validly existing and in good standing under the laws
of the State of Delaware and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. Except
as set forth on Schedule 2.1(a), as of the date hereof, the Company does
not have any subsidiaries. The Company is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction in
which the nature of the business conducted or property owned by it
makes such qualification necessary and where the failure so to qualify
would have a Material Adverse Effect. "Material Adverse Effect" means
any material adverse effect on the operations, properties, prospects, or
financial condition of the Company.
(b) Authorization; Enforcement. (i) The Company has the
requisite corporate power and authority to enter into and perform this
Agreement and to issue the Shares and the shares of Common Stock
issuable upon conversion of the Shares (the "Underlying Shares" and
with the Shares, the "Securities") in accordance with the terms hereof
and the Certificate of Designation, (ii) the execution and delivery of this
Agreement by the Company and the consummation by it of the
transactions contemplated hereby has been duly authorized by the
Company's Board of Directors and no further consent or authorization of
the Company or its Board of Directors or stockholders is required, (iii)
this Agreement has been duly executed and delivered by the Company
and (iv) this Agreement constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application.
(c) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in Schedule 2.1 (c). No
shares of Common Stock are entitled to preemptive rights. Except as
disclosed in Schedule 2.1 (c), as of the date of this Agreement there are
no outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or
rights convertible into, any shares of capital stock of the Company, or
contracts, commitments, understandings, or arrangements by which the
Company or any of its subsidiaries is or may become bound to issue
additional shares of Common Stock, or options, warrants, scrip, rights to
subscribe to, or commitments to purchase or acquire, any shares, or
securities or rights convertible into shares, of capital stock of the
Company. The Company has furnished to the Purchasers true and
correct copies of the Company's Certificate of Incorporation, as
amended, in effect on the date hereof (the "Certificate of Incorporation")
and, the Company's Amended and Restated By-Laws, as in effect on the
date hereof (the "By-Laws").
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(d) Issuance of Shares. The Shares are duly authorized,
and when paid for in accordance with the terms hereof shall be validly
issued, fully paid and nonassessable and free and clear of all liens,
claims and encumbrances. The Underlying Shares are duly authorized,
and when issued upon conversion in accordance with the terms of the
Certificate of Designation shall be validly issued, fully paid and non-
assessable and free and clear of all liens, claims and encumbrances.
The Company has and will maintain an adequate reserve of shares of
Common Stock to enable it to perform its obligations under this
Agreement.
(e) No Conflicts. The execution, delivery and performance
of this Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby or relating hereto do
not and will not (i) result in the violation of the Company's Certificate of
Incorporation or By-laws or (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to
which the Company is a party, or to the actual knowledge of the
Company, result in a violation of any law, rule, regulation, order, judgment
or decree (including Federal and state securities laws and regulations)
applicable to the Company, or by which any property or asset of the
Company is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as
would not, individually or in the aggregate, have a Material Adverse
Effect). The business of the Company is not being conducted in violation
of any law, ordinance or regulation of any governmental entity, except for
possible violations which either singly or in the aggregate do not have a
Material Adverse Effect. The Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute, deliver or
perform any of its obligations under this Agreement or issue and sell the
Securities in accordance with the terms hereof and the Certificate of
Designation, except for the filing of the Certificate of Designation with the
Secretary of State of the State of Delaware, which filing shall be effected
prior to the Closing Date.
(f) SEC Documents Financial Statements. The Common
Stock of the Company is registered pursuant to section 12(g) of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act")
and through and including the date hereof, the Company has filed all
reports, schedules, forms, statements and other documents required to
be filed by it with the Securities and Exchange Commission (the "SEC")
pursuant to the reporting requirements of the Exchange Act, including
material filed pursuant to section 13(a) or 15(d) (all of the foregoing
filed prior to the date hereof being hereinafter referred to herein as the
"SEC Documents"). The Company has delivered to the Purchasers true and
complete copies of the SEC Documents (other than documents
incorporated by reference therein but not filed therewith) filed with the
SEC since June 30, 1993. The Company has not provided any
non-public information to the Purchasers. As of their respective dates,
the SEC Documents complied in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
SEC promulgated thereunder applicable to such SEC Documents, and
none of the SEC Documents, when filed, contained any untrue statement
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of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Documents
comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with
respect thereto. Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto or
(ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) and
fairly present in all material respects the financial position of the
Company as of the dates thereof and the results of operations and cash
flows for the periods then ended (subject, in the case of unaudited
statement, to normal year-end audit adjustments).
(g) Absence of Material Changes. Except as otherwise
publicaly disclosed, since June 30, 1994, there has been no event,
occurence or development that has a Material Adverse Effect. Except as
otherwise publicly disclosed, since June 30, 1994, no event has occurred
which the Company would be required to disclose pursuant to applicable
statue, law, rule or regulation but which has not so been disclosed.
(h) No Undisclosed Liabilities. Except as set forth in the
SEC Documents or otherwise publicly disclosed, the Company has no
liabilities or obligations (whether direct, indirect, contingent or
otherwise) which have had or in the Company's reasonable judgment could
have a Material Adverse Effect if the Company were required to perform
such obligations.
2.2 Representations and Warranties of the Purchasers. Each
Purchaser,as applicable, hereby makes the following representations and
warranties to the Company as to itself, but not as to any other Purchaser:
(a) Organization; Authorization; Enforcement. (i) The
Purchaser is a corporation or partnership duly and validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization and has the requisite power to own its properties and to
carry on its business as now being conducted, (ii) the Purchaser has the
requisite power and authority to enter into and perform this Agreement,
(iii) the execution and delivery of this Agreement by the Purchaser and
the consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary action, and no further consent or
authorization of the Purchaser or its Board of Directors or stockholders or
partners is required, (iv) this Agreement has been duly executed and
delivered by the Purchaser (or on Purchaser's behalf by its investment
manager duly authorized to act on its behalf) and (v) this Agreement
constitutes a valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or
by other equitable principles of general application.
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(b) No Conflicts. The execution, delivery and performance
of this Agreement by the Purchaser and the consummation by the
Purchaser of the transactions contemplated hereby or relating hereto do
not and will not (i) result in the violation of the Purchaser's charter
documents or By-Laws or other organizational documents, (ii) conflict
with, or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, any agreement, indenture or
instrument to which the Purchaser is a party, or result in a violation of
any law, rule, regulation, order, judgment or decree of any court of
governmental agency applicable to the Purchaser or its properties
(except for such conflicts, defaults and violations as would not,
individually or in the aggregate, have a material adverse effect on the
Purchaser). The Purchaser is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court
or governmental agency in order for it to execute, deliver or perform any
of its obligations under this Agreement or purchase the Shares in
accordance with the terms hereof.
(c) Non U.S. Ownership. The Purchaser is not a U.S.
Person as defined within Regulation S ("Regulation S") promulgated
under the Securities Act of 1933 (the "Securities Act") and is not
purchasing the Shares for the account or benefit of a U.S. Person. If the
Shares are being purchased on Purchaser's behalf by its investment
manager, such investment manager is a dealer or other professional
fiduciary in accordance with Rule 902(o)(2) of Regulation S. The
Purchaser has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the
investments contemplated by this Agreement. The Purchaser has been
afforded, to the satisfaction of the Purchaser, the opportunity to review
the SEC Documents and obtain such additional publicly available
information concerning the Company and its business, and to ask such
questions and receive such answers (based upon publicly available
information), as the Purchaser deems necessary to make an informed
investment decision.
ARTICLE III
Covenants
3.1 Regulation S. (a) The Company shall take all necessary
reasonable corporate action and proceedings as may be required by
applicable law, rule or regulation for the legal and valid issuance of the
Shares to the Purchasers at the Closing in accordance with this
Agreement, for the legal and valid issuance of the Underlying Shares
upon conversion of the Shares in accordance with this Agreement and
the Certificate of Designation, and for any transfer or other disposition or
financing thereof, when and as permitted under Regulation S without
registration under the Securities Act or other applicable law.. Neither the
Company nor any of its affiliates have engaged or will engage in any
"directed selling efforts" (as such term is defined under Regulation S)
with respect to the Shares or the Underlying Shares and have complied and
will comply with the "offering restrictions" requirements of Regulation S.
(b) Each Purchaser acknowledges as to itself, but not as
to any other Purchaser, that the Shares and the Underlying Shares have
not been nor, except as otherwise provided in this Agreement, will be
registered under the Securities Act. Such Purchaser covenants (i) that it
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is not, and does not intend to be a "distributor" (as such term is defined
by Regulation S) of the Shares or the Underlying Shares, but if it so acts
then such Purchaser will comply with all applicable requirements under
Regulation S in connection therewith, (ii) that it will not offer or sell the
Shares or the Underlying Shares within the United States or to, or for the
account or benefit of, any "U.S. person" (as each such term is defined in
Regulation S) except in accordance with the provisions of Rule 903 or
Rule 904 of Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act and (iii) that neither the
Purchaser, its affiliates, nor persons acting on their behalf, have engaged
or will engage in "directed selling efforts" (as such term is defined by
Regulation S) with respect to the Shares and the Underlying Shares and
that each of them has complied and will comply with the "offering
restrictions" requirements of Regulation S.
(c) The Company acknowledges that the Purchasers may
from time to time engage in purchases, sales, financings or transactions
in the Common Stock separate and apart from the Securities acquired
pursuant to this Agreement.
3.2 Common Stock. From the date hereof through the Closing
Date, the Company shall not (i) amend its Certificate of Incorporation or
By-laws so as to adversely affect any rights of the Purchasers; (ii) split,
combine or reclassify its outstanding capital stock; (iii) declare or set
aside or pay any dividend or other distribution with respect to the
Common Stock; (iv) repurchase or offer to repurchase shares of its
stock; (v) sell equity or equity related securities (except shares issued
upon exercise of options granted under the Company's stock option plan)
or (vi) enter into any agreement with respect to the foregoing.
3.3 Purchasers' Rights if Regulation S is Amended. In the event
that at any time on or after the Closing Date and prior to the second
anniversary of the Closing Date, the Purchasers and the Company jointly
agree (or in the event they are unable to so agree upon receipt by the
Company of an opinion of a third party, mutually acceptable to the
Company and the Purchasers, who is experienced in transactions of this
type) that Regulation S has been amended or interpreted in a manner so
as to adversely effect the marketability of the Shares or the shares of
Common Stock underlying the Shares, other than as a result of the
actions taken by the Purchasers, then, at the Company's option, the
Company shall promptly (i) file a registration statement under the
Securities Act of 1933, as amended, to register for sale the Underlying
Shares and to use its reasonable efforts to cause such registration
statement to be declared effective or (ii) redeem the Shares and the
Underlying Shares, at an aggregate purchase price, in the case of the
Shares, equal to the Stated Value of the Shares to be redeemed plus
interest from the date of issuance at a rate equal to the monthly LIBOR,
and in the case of the Underlying Shares, the Market Value (as defined
below) of the Underlying Shares to be redeemed. For purposes of this
Article III, the Market Value shall equal the average of the Per Share
Market Value (as defined in the Certificate of Designation) for the 20
Trading Days (as defined in the Certificate of Designation) ending 5
Trading Days prior to the date the Underlying Shares are to be redeemed.
<PAGE>
3.4 Purchasers' Rights if Trading in Common Stock is
Suspended. In the event that at any time on or after the Closing Date and
prior to the second anniversary of the Closing Date, trading in the shares
of the Company's Common Stock is suspended on the principal market
or exchange for such shares (including The Nasdaq Stock Market), for a
period of five consecutive Trading Days, other than as a result of the
suspension of trading in securities generally, then, at each Purchaser's
option, the Company shall redeem the Shares at an aggregate purchase
price, in the case of the Shares, equal to the Stated Value of the Shares
to be redeemed and in the case of the Underlying Shares, the Market
Value of the Underlying Shares to be redeemed.
3.5 Limitations on Purchasers' Right to Convert. Notwithstanding
anything to the contrary contained herein or in the Certificate of
Designation, each Conversion Notice (as defined in the Certificate of
Designation) shall contain a representation that the number of shares of
Common Stock that the holder of Shares is then entitled to receive upon
the conversion of such number of Shares as is then being submitted for
conversion, together with any other shares of Common Stock will not
exceed 10% of the issued and outstanding shares of Common Stock,
after giving effect to the shares of Common Stock to be issued pursuant
to such Conversion Notice. If at the expiration of the Conversion Term
(as defined in the Certificate of Designation), a Purchaser, as a result of
the provisions of this Section 3.5, shall be unable to exercise its right to
convert Shares, the Conversion Term shall be extended for such
additional time, not to exceed three months, to permit such Purchaser to
convert, at its option, such remaining Shares as it shall then own giving
effect to (i) an increase in the Conversion Price, (ii) an increase in the
number of outstanding shares of Common Stock, or (iii) a decrease in
the number of shares of Common Stock owned by such Purchaser;
provided, however, that nothing contained herein shall be deemed to
increase the number of conversion rights granted to the holders of the
Shares.
ARTICLE IV
Conditions
4.1 Conditions Precedent to the Obligation of the Company to
Sell the Shares. The Obligation hereunder of the Company to sell the
Shares to the Purchasers is further subject to the satisfaction, at or
before the Closing, of each of the following conditions set forth below.
These conditions are for the Company's sole benefit and may be waived
by the Company at any time in its sole discretion.
(a) Accuracy of the Purchasers' Representations and
Warranties. The representations and warranties of the Purchaser shall
be true and correct in all material respects as of the date when made and
as of the Closing Date as though made at that time.
(b) Performance by the Purchasers. The Purchasers
shall have performed, satisfied and complied in all material respects with
all covenants, agreements and conditions required by this Agreement to
be performed, satisfied or complied with by the Purchasers at or prior to
the Closing.
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(c) No Injunction. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court of governmental authority of
competent jurisdiction which prohibits the consummation of any of the
transactions contemplated by this Agreement.
(d) No Change in Regulation S. Regulation S shall not
have been, nor proposed to be, amended or interpreted in a manner,
which, in the reasonable judgment of the Company, would materially
adversely effect the issuance or sale of the Securities by the Company.
(e) Filing of the Certificate of Designation. The
Certificate of Designation shall have been duly filed with the Secretary of
State of the State of Delaware and a certified copy thereof shall have
been returned to the Company.
4.2 Conditions Precedent to the Obligation of the Purchasers to
Purchase the Shares. The obligation of each Purchaser hereunder to
acquire and pay for the Shares is subject to the satisfaction, at or before
the Closing, of each of the following conditions set forth below. These
conditions are for each Purchaser's sole benefit and may be waived by
such Purchaser at any time in its sole discretion.
(a) Accuracy of the Company's Representations and
Warranties. The representations and warranties of the Company shall
be true and correct in all material respects as of the date when made and
as of the Closing Date as though made at that time (except for
representations and warranties set forth in Section 2.1(f) that speak as of
a particular date).
(b) Performance by the Company. The Company shall
have performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the
Closing.
(c) No Injunction. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court of governmental authority of
competent jurisdiction which prohibits the consummation of any of the
transactions contemplated by this Agreement.
(d) Adverse Changes. Since June 30, 1994, no event
which had a Material Adverse Effect on the Company has occurred.
(e) No Change in Regulation S. Regulation S shall not
have been, nor proposed to be, amended or interpreted in a manner,
which, in the reasonable judgment of the Purchaser, would materially
adversely effect the purchase of the Securities by the Purchaser.
(f) No Suspension of Trading in Common Stock. The
trading in the Common Stock shall not have been suspended by the SEC
or the National Association of Securities Dealers, Inc. (the "NASD")
(except for any suspension of trading of limited duration solely to permit
dissemination of material information regarding the Company).
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(g) Legal Opinion. The Company shall have delivered to the
Purchaser the opinion of Warshaw Burstein Cohen Schlesinger & Kuh, counsel
to the Company, in form and substance reasonably satisfactory to the
Purchaser.
(h) Officer's Certificate. The Company shall have delivered to the
Purchaser a certificate, executed by an executive officer of the Company,
to the effect all the conditions to the closing shall have been satisfied.
(i) Filing of the Certificate of Designation. The Certificate of
Designation shall have been duly filed with the Secretary of State of the
State of Delaware and a certified copy thereof shall have been returned to
the Company.
ARTICLE V
Termination
5.1 Termination by Mutual Consent. This Agreement may be terminated
at any time by the mutual consent of the Company and the Purchasers.
ARTICLE VI
Miscellaneous
6.1 Fees and Expenses: No Brokers. Each party shall pay the
fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all stamp and other taxes and duties
levied in connection with the issuance of the Securities pursuant hereto.
Each party represents that it has not used the services of any broker in
connection with this transaction, other than a broker as to which such
party shall be solely responsible for the payment of any fees and
expenses incurred in connection herewith.
6.2 Entire Agreement; Amendments. This Agreement, together
with the Exhibit and Schedules attached hereto, contains the entire
understanding of the parties with respect to the matters covered hereby
and, except as specifically set forth herein, neither the Company nor the
Purchasers makes any representation, warranty, covenant or undertaking
with respect to such matters. No provision of this Agreement may be
waived or amended other than by a written instrument signed by the party
against whom enforcement of any such amendment or waiver is sought.
6.3 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be deemed
to have been received (a) upon hand delivery (receipt acknowledged) or
delivery by telex (with correct answer back received), telecopy or
facsimile (with transmission confirmation report) at the address or
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number designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first business
day following such delivery (if delivered other than on a business day
during normal business hours where such notice is to be received) or (b) on
the second business day following the date of mailing by express courier
service, fully prepaid, addressed to such address, or upon actual receipt
of such mailing, whichever shall first occur. The addresses for such
communications shall be:
to the Company: Immunomedics, Inc.
300 American Road
Morris Plains, NJ 07950
Facsimile No.: (201) 605-8282
Attn: Chief Executive Officer
With copies to: Howard M. Cohen, Esq.
Warshaw Burstein Cohen Schlesinger & Kuh
555 Fifth Avenue - 11th Floor
New York, NY 10017
Facsimile No.: (212) 972-9150
If to a Purchaser: At the Address set forth on Schedule 1 hereto.
Either party hereto may from time to time change its address for notices
under this Section 6.3 by giving at least 10 days' written notice of such
changed address to the other party hereto.
6.4 Waivers. No waiver by either party of any default with respect
to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof; nor shall any delay or
omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right accruing to it thereafter. Any waiver
must be in writing.
6.5 Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
6.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and
permitted assigns. Neither the Company nor any Purchaser shall assign
this Agreement or any rights or obligations hereunder without the prior
written consent of the other (which consent may be withheld for any
reason in the sole discretion of the party from whom consent is sought).
The assignment by a party of this Agreement or any rights hereunder
shall not affect the obligations of such party under this Agreement.
6.7 No Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted
successors and assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
6.8 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State
of New York without regard to the principles of conflicts of law.
<PAGE>
6.9 Availability of Equitable Remedies; Consent to Jurisdiction.
(a) The Company and the Purchasers agree that since a breach of the
provisions of this Agreement could not adequately be compensated by
money damages, any party shall be entitled, either before or after the
Closing, in addition to any other right or remedy available to it, to an
injunction restraining such breach or a threatened breach and to specific
performance of any such provision of this Agreement and the parties
hereby consent to the issuance of such injunction and to the ordering of
specific performance.
(b) Each of the Company and the Purchasers hereby (i)
irrevocably consents to the jurisdiction of the federal courts located in the
State of New York (or the courts of the State of New York if the federal
court decline to accept jurisdiction) in connection with any action or
proceeding arising out of or relating to this Agreement, any document or
instrument delivered pursuant to, in connection with, or simultaneously
with this Agreement, or a breach of this Agreement or any such
document or instrument and (ii) in any such action or proceeding, waives
personal service of any summons, complaint, or other process and
agrees that service thereof may be made in accordance with Section 6.3
and shall constitute good and sufficient service of process and notice
thereof.
6.10 Survival. The agreements and covenants of the Company
and the Purchasers contained in Article III and this Article VI shall
survive the termination of this Agreement or the consummation of the
transactions contemplated hereby. The representations and warranties
of the Company and the Purchasers contained in Article II shall survive
until a date that is one year after the Closing.
6.10 Execution. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original for all purposes
and any one of which may be introduced into evidence or used for any
other purpose without the production of its duplicate counterpart, and all
of which shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event any signature is delivered by
facsimile transmission, the party using such means of delivery shall
cause four additional executed signature pages to be physically delivered
to the other party within five days of the execution and delivery hereof.
6.11 Publicity. The Company and the Purchasers shall consult
with each other in issuing any press releases or otherwise making public
statements with respect to the transactions contemplated hereby. Neither
party shall issue any press release or otherwise make any public
statement without the prior written consent of the other, which consent
shall not be unreasonably withheld or delayed.
6.12 Severability. In case any one or more of the provisions of
this Agreement shall be invalid or unenforceable in any respect, the
validity and enforceability of the remaining terms and provisions of this
Agreement shall not in any way be affecting or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision which
shall be a reasonable substitute therefor, in light of the tenor of this
Agreement, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
IMMUNOMEDICS, INC.
By
Name:
Title:
SP INVESTORS INT'L, N.V.,
By: THE PALLADIN GROUP, L.P., as agent
By: PALLADIN CAPITAL MANAGEMENT, INC.
By
Name: Jeffrey Devers
Title: President
STEINHARDT OVERSEAS FUND, LTD.
By: THE PALLADIN GROUP, L.P., as agent
BY: PALLADIN CAPITAL MANAGEMENT, INC.
By
Name: Jeffrey Devers
Title: President
MIDLAND WALWYN CAPITAL, INC.
By
Name: Gregory W. Murphy
Title: Vice President, Equity Derivatives
<PAGE>
Schedule 1
Name and Address of Purchaser Shares Aggregate Purchase Price
SP Investors Int'l, N.V. 50,000 $2,500,000
c/o WW Asset Management
129 Front Street
Hamilton, Bermuda 5-31
Steinhardt Overseas Fund, Ltd. 50,000 $2,500,000
c/o WW Asset Management
129 Front Street
Hamilton, Bermuda 5-31
with copies of any notices or
communications to:
The Palladin Group L.P.
40 West 57th Street, 15th Floor
New York, New York 10019
Facsimile No. (212) 698-0599
Attn: Jeffrey Devers
Midland Walwyn Capital Inc. 50,000 $2,500,000
BCE Place
181 Bay Street, Suite 500
Toronto, Ontario
Canada M5J2V8
<PAGE>
Schedule 2.1(a)
Name of Subsidiary Jurisdiction of Incorporation
Immunomedics Ltd. Israel
(inactive corporation)
<PAGE>
Schedule 2.1(c)
Capitalization of the Company
Issued and
Class Authorized Outstanding
Preferred Stock 10,000,000 0
$.01 par value
Common Stock, $.01 50,000,000 30,055,469
par value
Outstanding Options Warrants and Rights
The Company has outstanding options to purchase 2,160,500 shares
of Common Stock, at prices ranging from $2.25 to $10.75.
