CONFORMED COPY
CONVERTIBLE PREFERRED STOCK PURCHASE
AGREEMENT (the "Agreement") dated as of September 29, 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 200,000 shares of the
Company's Series C Convertible Preferred Stock, par value $0.01 per
share (the "Series C 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 C Preferred
1.1 Purchase and Sale of Series C 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 C Preferred as is set
forth opposite such Purchaser's name on Schedule 1 hereto. The
Series C Preferred shall contain the terms and provisions set forth in
the Certificate of Designation (the "Certificate of Designation"), a
copy of 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, LLP, 555 Fifth Avenue, New York, New
York 10017 at 10:00 a.m., New York City on September 29, 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.
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").
(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 nonassessable 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, 1994. 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
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
publicly disclosed, since June 30, 1995, there has been no event,
occurrence or development that has a Material Adverse Effect. Except
as otherwise publicly disclosed, since June 30, 1995, 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.
(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.
(d) Investment Intent. The Purchaser is purchasing the
Securities for investment purposes and not with a view towards
distribution. The Purchaser has no present intention to sell the
Securities and has no present arrangement (whether or not legally
binding) to sell the Securities to or through any person or entity;
provided, however, that by making the foregoing representation and
warranty, the Purchaser does not agree to hold the Securities for any
minimum or other specific term and reserves the right to dispose of
the Securities at any time in accordance with the Securities Act and
any other applicable securities laws.
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 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, if a
distributor, 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
expiration of the Conversion Term (as defined in the Certificate of
Designation), 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 15 Trading Days (as defined in the Certificate of
Designation) ending 5 Trading Days prior to the date the Underlying
Shares are to be redeemed.
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 expiration of the Conversion Term, 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, no Purchaser, shall be entitled to convert
any Shares if 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 then held will equal or
exceed 5% 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. Each Conversion Notice (as
defined in the Certificate of Designation) shall contain a
representation as to the foregoing. If at the expiration of the
Conversion Term, 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 (as defined in the Certificate of
Designation), (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.
3.6 Limitations on Purchaser's Right to Sell Common Stock.
Each Purchaser agrees that during the period commencing on the
Closing Date and ending 40 days thereafter, it will not engage in any
short selling or other hedging transaction in the Securities including,
without limitation, option writing equity swaps or other types of
derivative transactions, the intent of which is to transfer incidence of
ownership into the United States during such period. Each Purchaser
hereby further agrees that during the period commencing on the date
that a Conversion Notice is delivered to the Company until the end
of the relevant Pricing Period (as such term is defined in the
Certificate of Designation), such Purchaser will not, nor direct any
affiliate or broker acting on its behalf to, enter into (i) a sale of the
Common Stock at a price which is then below the then low daily
trading price of the Common Stock or (ii) any "market open" or
"market close" transaction which would result in establishing a new
low daily trading price for the Common Stock on such day.
3.7 Adjustment to Conversion Price. In the event that at any
time on or after the Closing Date and prior to the expiration of the
Conversion Term but not later than the first anniversary of the Closing
Date (the "Adjustment Period"), the Company shall issue, in a private
placement or an offering under Regulation S, Common Stock or any
securities convertible into or exercisable for Common Stock, which
the Company determines, in its reasonable judgment, has a sales
price (in the case of Common Stock) or a conversion or exercise price
(in the case of securities convertible into or exercisable for Common
Stock), as the case may be (the "Adjusted Conversion Price"), as a
percentage of the Average Price on the date of issuance, that is less
than the Conversion Price of the Series C Preferred Stock, as a
percentage of the Pricing Period Average Price, then, upon the
request of the holders of a Majority in Interest (as defined in the
Certificate of Designation) of the then outstanding Shares, the
Company shall promptly file a certificate of amendment to the
Certificate of Designation to permit the then outstanding Shares to
thereafter be converted into Common Stock at the Adjusted
Conversion Price. During the Adjustment Period, the Company
agrees to promptly notified each holder of Shares of any issuance of
securities in a private placement or offering under Regulation S.
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.
(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, 1995, 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).
(g) Legal Opinion. The Company shall have delivered
to the Purchaser the opinion of Warshaw Burstein Cohen Schlesinger
& Kuh, LLP, 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 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, LLP
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.
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.
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 /s/ Amy Factor
Amy Factor
Executiver Vice President
PURCHASERS:
GERSHON PARTNERS, L.P.
By: The Palladin Group, L.P., its investment manager
By: Palladin Capital Management, LLC, its General Parnter
By /s/ Andy Kaplan
Andy Kaplan
Vice President
SP INVESTORS INTERNATIONAL, N.V.,
By /s/ Lisa Addeo
Lisa Addeo, as authorized oficer of Steinhardt
Management Co., Inc.,
as agent for SP Investors International N.V.
STEINHARDT OVERSEAS FUND, LTD.
By /s/ Lisa Addeo
Lisa Addeo, as Attorney-n-fact of Michael H.
Steinhardt, General Partner,
of Steinhardt Overseas Management,
L.P., as agent for Steinhardt
Overseads Fund, Ltd.
Title: MIDLAND WALWYN CAPITAL, INC.
By /s/ David Rarvis
David Jarvisame: Vice President & Manager
- Equity Derivatives
Schedule 1
Name and Address of Purchaser Shares Aggregate Purchase Price
Gershon Partners, L.P. 30,000 $1,500,000
c/o CITCO Fund Services Ltd.
Corporate Centre
West Bay Road
P.O. Box 31106 SMB
Grand Cayman, Cayman Islands
SP Investors International, N.V. 60,000 $3,000,000
c/o WW Asset Management
129 Front Street
Hamilton, Bermuda 5-31
Steinhardt Overseas Fund, Ltd. 60,000 $3,000,000
c/o WW Asset Management
129 Front Street
Hamilton, Bermuda 5-31
Midland Walwyn Capital Inc. 50,000 $2,500,000
BCE Place 181 Bay Street, Suite 500
Toronto, Ontario
Canada M5J2V8
Schedule 2.1(a)
Name of Subsidiary Jurisdiction of Incorporation
Immunomedics Ltd. Israel
(inactive corporation)
Immunomedics, B.V. Netherlands
(in process of formation)
Schedule 2.1(c)
Capitalization of the Company
Issued and Class Authorized Outstanding
Preferred Stock, $.01 par value 10,000,000
Series B convertible 200,000 5,267
Series C convertible 200,000 0
Common Stock, $.01 par value 50,000,000 32,727,749
par value
Outstanding Options Warrants and Rights
The Company has outstanding options to purchase 2,157,750
shares of Common Stock, at prices ranging from $2.25 to $10.75.