Kai H. Liekefett kliekefett@velaw.com
Tel +1.212.237.0037Fax +1.713.237.0100
March 1, 2017
via EDGAR, email and Federal Express
Daniel F. Duchovny
Special Counsel
Office of Mergers and Acquisitions
United States Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549-3561
| Re: | Immunomedics, Inc. Definitive Additional Soliciting Materials Filed February 16 and 21, 2017 File 000-12104 |
Ladies and Gentlemen:
Set forth below are the responses of Immunomedics, Inc. (the “Company”) to comments received from the staff of the Division of Corporation Finance (the “Staff”) of the Securities and Exchange Commission (the ���Commission”) by letter dated February 23, 2017, with respect to Definitive Additional Soliciting Materials, File No. 000-12104, filed with the Commission on February 16 and 21, 2017 (the “Definitive Additional Soliciting Materials”).
Concurrently with the submission of this letter, we have publicly filed a revised definitive proxy statement (the “Third Supplement to the Proxy Statement for the 2016 Annual Meeting of Stockholders”) on Schedule 14A with Edgar tag DEFR14A.
For your convenience, each response is prefaced by the exact text of the Staff’s corresponding comment in bold, italicized text. All references to page numbers and captions correspond to the Definitive Additional Soliciting Materials unless otherwise specified.
Definitive Additional Soliciting Materials Filed on February 16, 2017
| 1. | We note that you revised your bylaws to include a new voting requirement for contested elections of directors. File a revised definitive proxy statement, using Edgar tag DEFR14A, to provide this disclosure to your security holders. |
Vinson & Elkins LLP Attorneys at Law Austin Beijing Dallas Dubai Hong Kong Houston London Moscow New York Palo Alto Richmond Riyadh San Francisco Taipei Tokyo Washington | 666 Fifth Avenue New York, New York 10103-0040 Tel+1.212.237.0000Fax +1.713.237.0100www.velaw.com |
 | Securities and Exchange CommissionMarch 1, 2017 |
RESPONSE:
The Company acknowledges the Staff’s comment and has filed revised definitive proxy material with the Commission on March 1, 2017.
| 2. | We note your disclosure that the “Chancery Court refused venBio’s request to enjoin any aspect of the transaction with Seattle Genetics prior to the March 3, 2017 Annual Meeting.” Revise your disclosure, and reissue your press release to state that the court, in fact, did not make a decision regarding venBio’s request to enjoin as a result of the parties agreement to delay closing of the agreement with Seattle Genetics until March 8. |
RESPONSE:
The Company respectfully submits that its disclosure that the “Chancery Court refused venBio’s request to enjoin any aspect of the transaction with Seattle Genetics prior to the [March 3, 2017] Annual Meeting” is accurate and that therefore no revision of disclosure or reissuance of the Company’s press release should be required.
On February 13, 2017, venBio Select Advisor LLC (“venBio”) filed a Verified Complaint in the Court of Chancery of the State of Delaware, in which it requested, among other relief, that the court enjoin the closing of the Seattle Genetics transaction prior to Immunomedics’ upcoming Annual Meeting. Specifically, venBio requested an order of the Chancery Court:
“Enjoining Defendants [Immunomedics, Inc., David M. Goldenberg, Brian A. Markison, Robert Forrester, Jason Aryeh, Cynthia L. Sullivan, Geoff Cox, Bob Oliver, and Seattle Genetics, Inc.], their agents and representative, and all other persons acting in concert with them from taking any actions in furtherance of closing the Seattle Genetics Transaction prior to the election of the new Board [at Immunomedics’ upcoming Annual Meeting].”
VenBio Verified Compl. at 42.
On February 17, 2017, the Chancery Court held a hearing on this matter. At that hearing, counsel for venBio raised the issue of its requested injunction of the Seattle Genetics transaction prior to Immunomedics’ upcoming Annual Meeting. Feb. 17 Hr’g Tr. at 5 (Exhibit A). The Chancery Court declined to award this relief, stating:
| Securities and Exchange CommissionMarch 1, 2017 Page 3 |
“I am going to hold [counsel for Immunomedics and counsel for Seattle Genetics] to their representation that the deal will not close, in any event, before March 8th.I’m not going to impose any requirements beyondthat . . . .”
Id. at 25 (emphasis added) (Exhibit A).[1]
The Company’s statement was based on these specific statements made by the Court of Chancery, and the Company continues to believe that its characterization of the Chancery Court’s position on this matter is factually accurate and has a reasonable factual basis. We believe the Company should not be required to state “that the court, in fact, did not make a decision regarding venBio’s request to enjoin as a result of the parties agreement to delay closing” because the Court did not say that. In fact, the Court did not explain its rationale at all. It would be inappropriate for the Company to speculate as to the reasons why the Court declined to enjoin the Seattle transaction prior to the Annual Meeting. Accordingly, the Company does not believe that corrective disclosure or a reissuance of its press release is appropriate. The Company notes that venBio is free to issue its own press release and characterize the Court of Chancery’s statements as venBio thinks appropriate.
* * * * *
If you have any questions with respect to the foregoing or if any additional supplemental information is required by the Staff, please contact Kai Haakon E. Liekefett of Vinson & Elkins L.L.P. at (212) 237 0037.
Very truly yours,
VINSON & ELKINS L.L.P.
By:/s/ Kai Haakon E. Liekefett___________
Name: Kai Haakon E. Liekefett
cc: Ms. Cynthia L. Sullivan, President and Chief Executive Officer
[1] As disclosed in the Company’s Form 8-K filed with the SEC on March 21, 2017, Seattle Genetics and Immunomedics subsequently – after the hearing – committed not to close the transactions until March 10, 2017.
| Securities and Exchange CommissionMarch 1, 2017 |
Exhibit A
