Exhibit 4.1
Immunomedics, Inc.
5% Senior Convertible Notes due 2008 & Common Stock
Registration Rights Agreement
April 27, 2005
Ladies and Gentlemen:
Immunomedics, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the several purchasers whose names are set forth on
Schedule A hereto, (collectively, the "Purchasers" and each, a "Purchaser"),
upon the terms set forth in each purchase agreement between the Company and a
Purchaser (collectively, the "Purchase Agreements", and each, a "Purchase
Agreement"), its 5% Senior Convertible Notes due 2008 (such notes and the
additional notes that may subsequently be purchased upon exercise of a Holder's
option pursuant to such Purchase Agreements, the "Notes") and the Warrants
entitling the holder thereof to purchase shares of the Company's Common Stock
(such warrants and additional warrants that may subsequently be purchased upon
exercise of a Holder's option pursuant to such Purchase Agreements, the
"Warrants," and, together with the Notes, the "Securities"). As an inducement to
the Purchasers to enter into Purchase Agreements and in satisfaction of a
condition to the obligations of each Purchaser thereunder, the Company agrees
with each Purchaser, who from time to time holds Registrable Securities (as
defined herein) as follows:
Section 1. Definitions. (a) Capitalized terms used herein without
definition have the meanings ascribed to them in the Purchase Agreements. As
used in this Agreement, the following defined terms have the following meanings:
"Additional Interest" has the meaning assigned thereto in Section
7(a) hereof.
"Additional Interest Payment Date" means each Interest Payment Date
as defined in the Indenture.
"Affiliate" of any specified person means any other person who or
which, directly or indirectly, is in control of, is controlled by, or is under
common control with such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Amount" means, (i) with respect to the Notes, the
principal amount of the Notes and (ii) with respect to shares of Common Stock
issued upon conversion of the Securities pursuant to the Indenture, the
principal amount of Securities that would then be convertible into such number
of shares.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Commission" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i) hereof.
"Effective Time" means the time at which the Commission declares any
Shelf Registration Statement effective or at which any Shelf Registration
Statement otherwise becomes effective.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Holder" means any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" means the Indenture, dated as of April 29, 2005, between
the Company and Law Debenture Trust Company of New York, pursuant to which the
Securities are to be issued, and as amended and supplemented from time to time
in accordance with its terms.
"Institutional Accredited Investor" means an institutional investor
that is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Issue Date" means the first date of original issuance of the
Securities.
"Majority of Holders" means Holders holding over 50% of the
aggregate principal amount of Registrable Securities outstanding.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Election and Questionnaire substantially in the form
of Appendix A hereto.
"Notice Holder" has the meaning assigned thereto in Section 3(a)(i)
hereof.
"Option" means a Holder's right to purchase additional Registrable
Securities pursuant to the terms of a Purchase Agreement.
The term "person" means an individual, partnership, limited
liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by any Shelf Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference therein.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registrable Securities" means all or any portion of the Notes from
time to time under the Indenture in registered form and the Warrants under the
Warrant Agreement, the shares of Common Stock issuable upon conversion of the
Notes or exercise of Warrants until the earliest of: (A) the date when such
Registrable Security has been registered pursuant to an effective registration
statement and disposed of in accordance therewith, (B) the date when all of the
Common Stock issuable upon conversion of Securities have been sold pursuant to
Rule 144 under the Securities Act, (C) the date on which the Holders of the
Notes, Warrants and Common Stock issuable upon conversion of the Securities are
able to sell all such Securities immediately pursuant to Rule 144(k) (or any
successor rule or regulation) under the Securities Act or (D) the date when all
of the Notes, Warrants and Common Stock issuable upon conversion of the
Securities cease to be outstanding.
"Registration Default" has the meaning assigned thereto in Section
7(a) hereof.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Shelf Registration" means a registration effected under the
Securities Act pursuant to Section 2 hereof.
"Shelf Registration Statement" means a "shelf" registration
statement filed under the Securities Act providing for the registration of, and
the sale on a continuous or delayed basis by the Holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission, filed by the Company
pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such registration statement, and
any additional "shelf" registration statement or registration statements filed
under the Securities Act to permit the registration and sale of Registrable
Securities pursuant to Section 3(a)(ii) hereof.
"Suspension Period" has the meaning assigned thereto in Section 2(c)
hereof.
"Suspension Notice" has the meaning assigned thereto in Section 3(z)
hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same is amended from time to time.
The term "underwriter" means any underwriter, or any person deemed
to be an underwriter pursuant to the Securities Act or the Exchange Act and the
respective rules and regulations thereunder, as in effect at any relevant time,
of Registrable Securities in connection with an offering thereof under a Shelf
Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage
of the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, each share of Common Stock issued upon conversion of the
Securities shall represent a principal amount or percentage of Registrable
Securities determined based on a quotient, (i) the numerator of which shall be
equal to the aggregate principal amount of Securities issued, less the aggregate
principal amount of Securities outstanding as of the date of determination, and
(ii) the denominator of which shall be equal to the aggregate number of shares
of Common Stock issued upon conversion of the Securities as of the date of
determination.
Section 2. Shelf Registration. (a) The Company shall, no later than
120 calendar days following the Issue Date, file with the Commission a Shelf
Registration Statement relating to the resale of the Registrable Securities by
the Holders from time to time in accordance with the methods of distribution
elected by such Holders and, thereafter, shall use its best efforts to cause
such Shelf Registration Statement to be declared effective under the Securities
Act no later than 180 calendar days following the Issue Date; provided, however,
that no Holder shall be entitled to be named as a selling securityholder in any
Shelf Registration Statement as of the date it is declared effective or to use
the Prospectus forming a part thereof for offers and resales of Registrable
Securities unless such Holder is a Notice Holder. The Company shall amend the
Shelf Registration Statement in accordance with the terms and conditions of this
Agreement to include therein any Registrable Securities acquired by Notice
Holders resulting from the exercise of Options.
(b) Subject to Section 2(c) hereof, the Company shall use its
reasonable best efforts:
(i) to keep any Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 3(j)
hereof, in order to permit the Prospectus forming a part thereof to be
usable by the Notice Holders listed therein until the earliest date when
at least one of the following is true with respect to the Registrable
Securities registered thereby: (A) the Registrable Securities have been
disposed of pursuant to an effective Shelf Registration Statement, (B) the
Registrable Securities have been sold pursuant to Rule 144 under the
Securities Act, (C) the Registrable Securities are eligible to be sold
pursuant to Rule 144(k) (or any successor rule or regulation) under the
Securities Act or (D) the Registrable Securities cease to be outstanding
(such period being referred to herein as the "Effectiveness Period"); and
(ii) after the Effective Time of the Shelf Registration Statement,
upon receipt of a completed and signed Notice and Questionnaire from any
Holder of Registrable Securities that is not then a Notice Holder, to take
the actions provided for in Section 3(a)(ii) hereof.
The Company shall be deemed not to have used its reasonable best efforts to keep
any Shelf Registration Statement effective during the Effectiveness Period if
the Company voluntarily takes any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell any of
such Registrable Securities under such Shelf Registration Statement during that
period, unless such action is (A) required by applicable law and the Company
thereafter promptly complies with the requirements of Section 3(j) hereof or (B)
permitted pursuant to Section 2(c) hereof.
(c) After the Effective Time of the Shelf Registration Statement,
the Company may suspend the use of any Prospectus by written notice to the
Notice Holders for a period not to exceed an aggregate of 45 calendar days in
any 90 calendar day period (each such period, a "Suspension Period") if:
(i) an event has occurred and is continuing as a result of which the
Shelf Registration Statement would, in the Company's reasonable judgment,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and
(ii) the Company determines in good faith that the disclosure of
such event at such time would have a material adverse effect on the
Company and its subsidiaries taken as a whole.
provided, that in the event the disclosure relates to a previously undisclosed
proposed or pending material business transaction, the disclosure of which would
impede the Company's ability to consummate such transaction, the Company may
extend a Suspension Period for an additional 15 calendar day period; provided
further, however, that, notwithstanding anything to the contrary herein, any
Suspension Periods permitted under this subsection (c), including, without
limitation, any extension of a Suspension Period, may not exceed an aggregate of
90 calendar days in any 360 calendar day period.
Section 3. Registration Procedures. In connection with the Shelf
Registration Statement, the following provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the time the Company
in good faith intends to have the Shelf Registration Statement declared
effective, the Company shall distribute the Notice and Questionnaire to the
Holders of Registrable Securities. The Company shall take action to name as a
selling securityholder in the Shelf Registration Statement at the Effective Time
each Holder that completes, executes and delivers a Notice and Questionnaire to
the Company at the address set forth in the Notice and Questionnaire (a "Notice
Holder") prior to or on the 20th calendar day after such Holder's receipt
thereof so that such Holder is permitted to deliver the Prospectus forming a
part thereof as of such time to purchasers of such Holder's Registrable
Securities in accordance with applicable law. The Company will not be required
to take any action to name any Holder as a selling securityholder in the Shelf
Registration Statement at the time of its effectiveness or to enable any Holder
to use the Prospectus forming a part thereof for resales of Registrable
Securities unless such Holder has returned a completed and signed Notice and
Questionnaire to the Company as set forth in this Section 3(a).
(ii) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the request of any Holder of Registrable
Securities that is not then a Notice Holder, promptly send a Notice and
Questionnaire to such Holder. After the Effective Time of the Shelf Registration
Statement, the Company shall (A) after the date a completed and signed Notice
and Questionnaire is delivered to the Company, prepare and file with the
Commission (x) a supplement to the Prospectus as promptly as practicable or, if
required by applicable law, a post-effective amendment to the Shelf Registration
Statement or an additional Shelf Registration Statement as promptly as
practicable after the end of the fiscal quarter ended not less than 10 days
after receipt of the Notice and Questionnaire and (y) any other document
required by applicable law, so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in a Shelf Registration
Statement and is permitted to deliver the Prospectus to purchasers of such
Holder's Registrable Securities in accordance with applicable law, and (B) if
the Company files a post-effective amendment to the Shelf Registration
Statement, or an additional Shelf Registration Statement, use its reasonable
best efforts to cause such post-effective amendment or such additional Shelf
Registration Statement to become effective under the Securities Act as promptly
as is practicable; provided, however, that if a Notice and Questionnaire is
delivered to the Company during a Suspension Period, the Company will not be
obligated to take the actions set forth in this clause (ii) until the
termination of such Suspension Period.
(b) The Company shall furnish to each Notice Holder, prior to the
Effective Time, a copy of the Shelf Registration Statement initially filed with
the Commission, and shall furnish to such Notice Holders, prior to the filing
with the Commission, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein (other than supplements
solely for the purpose of naming one or more Notice Holders as selling
securityholders), and shall use its best efforts to reflect in each such
document, at the Effective Time or when so filed with the Commission, as the
case may be, such comments as such Notice Holders and their respective counsel
reasonably may propose.
(c) The Company shall promptly take such action as may be necessary
so that (i) the Shelf Registration Statement and any amendment thereto and the
Prospectus forming a part thereof and any amendment or supplement thereto (and
each report or other document incorporated therein by reference in each case)
comply in all material respects with the Securities Act and the Exchange Act and
the respective rules and regulations thereunder, as in effect at any relevant
time, (ii) the Shelf Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and (iii) the Prospectus forming a part
of the Shelf Registration Statement, and any amendment or supplement to such
Prospectus, in the form delivered to purchasers of the Registrable Securities
during the Effectiveness Period, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Company shall promptly advise each Notice Holder:
(i) when the Shelf Registration Statement has been filed with the
Commission and when the Shelf Registration Statement has become effective,
in each case by issuing a public announcement thereof to Reuters Economic
Services or Bloomberg Business News;
(ii) when any Prospectus supplement, Shelf Registration Statement or
post-effective amendment to a Shelf Registration has been filed with the
Commission and, with respect to a Shelf Registration Statement or any
post-effective amendment, when the same has been declared effective by the
Commission, provided, however that the Company shall not be required by
this clause (ii) to notify any previously existing Notice Holder of the
filing of a prospectus supplement that merely names one or more other
Notice Holders as selling securityholders;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of any Shelf Registration Statement or the initiation of
any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the securities included in any
Shelf Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) of the happening of any event or the existence of any state of
facts that requires the making of any changes in any Shelf Registration
Statement or the Prospectus included therein so that, as of such date,
such Shelf Registration Statement and Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in the light of the circumstances under
which they were made) not misleading (which advice will be accompanied by
an instruction to such Holders to suspend the use of the Prospectus until
the requisite changes have been made, which notice need not specify the
nature of the event giving rise to such suspension).
(e) The Company shall use its reasonable best efforts to prevent the
issuance, and if issued to obtain the withdrawal at the earliest possible time,
of any order suspending the effectiveness of any Shelf Registration Statement.
(f) The Company shall, as promptly as reasonably practicable,
furnish to each Notice Holder, and any underwriter, upon their request and
without charge, at least one (1) conformed copy of the Registration Statement
and any amendment thereto, including financial statements but excluding all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing to the Company by such Notice Holder).
(g) The Company shall, during the Effectiveness Period, deliver to
each Notice Holder, without charge, as many copies of each Prospectus in which
the Notice Holder is listed as a selling securityholder included in the
applicable Shelf Registration Statement and any amendment or supplement thereto,
as such Notice Holder may reasonably request; and the Company consents (except
during a Suspension Period or during the continuance of any event described in
Section 3(d) (iii)-(vi) above) to the use of the Prospectus and any amendment or
supplement thereto by each of the Notice Holders in connection with the offering
and sale of the Registrable Securities covered by the Prospectus and any
amendment or supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to a
Shelf Registration Statement, the Company shall (i) register or qualify (or at
the Notice Holder's option, cooperate with the Notice Holders and their
respective counsel in connection with the registration or qualification or
exemption from such registration or qualification of) such Registrable
Securities for offer and sale under the securities or "Blue Sky" laws of such
jurisdictions within the United States as any Notice Holder may reasonably
request in writing, (ii) keep such registrations or qualifications or exemption
therefrom in effect and comply with such laws so as to permit the continuance of
offers and sales in such jurisdictions for so long as may be necessary to enable
any Notice Holder or underwriter, to complete its distribution of Registrable
Securities pursuant to such Shelf Registration Statement, and (iii) take any and
all other actions necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities; provided, however, that in no
event shall the Company be obligated to (A) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 3(h) or (B) subject itself to
general or unlimited service of process or to taxation in any such jurisdiction
if they are not now so subject
(i) Unless any Registrable Securities are in book-entry only form,
the Company shall cooperate with the Notice Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to any Shelf Registration Statement, which certificates, if so
required by any securities market or exchange upon which any Registrable
Securities are quoted or listed, will be penned, lithographed or engraved, or
produced by any combination of such methods, on steel engraved borders, and
which certificates will be free of any restrictive legends and in such permitted
denominations and registered in such names as Notice Holders may request in
connection with the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(j) Upon the occurrence of any fact or event contemplated by
paragraph 3(d)(v) above, subject to Section 2(c) hereof, the Company shall
promptly, but in any event within 20 Business Days following such occurrence,
prepare, and file a post-effective amendment to any Shelf Registration Statement
or an amendment or supplement to the related Prospectus included therein or file
any other document with the Commission so that, as thereafter delivered to
purchasers of the Registrable Securities, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. If the Company notifies the Notice Holders of
the occurrence of any fact or event contemplated by paragraph 3(d)(v) above, the
Notice Holder shall suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made.
(k) Not later than the Effective Time of a Shelf Registration
Statement, the Company shall, as applicable, provide a CUSIP number for the debt
securities to be sold pursuant to a Shelf Registration Statement.
(l) The Company shall use its best efforts to comply with the
Securities Act and the Exchange Act and the respective rules and regulations
thereunder, as in effect at any relevant time, and make generally available to
its securityholders earnings statements (which need not be audited) satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than at the
time required by the Securities Act and the Exchange Act and the rules and
regulations thereunder, as in effect at any relevant time, commencing on the
first day of the first fiscal quarter of the Company commencing after (i) the
effective date of a Shelf Registration Statement, (ii) the effective date of
each post-effective amendment to such Shelf Registration Statement, or (iii) the
date of each filing by the Company with the Commission of an Annual Report on
Form 10-K that is incorporated by reference in such Shelf Registration
Statement, which statements will cover said 12-month periods.
(m) Not later than the Effective Time of the initial Shelf
Registration Statement, the Company shall use its best efforts to cause the
Indenture to be qualified under the Trust Indenture Act; in connection with such
qualification, the Company shall cooperate with the Trustee under the Indenture
and the Holders (as defined in the Indenture) to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and the Company shall execute, and
shall use all reasonable efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner. In the event that any such amendment or
modification referred to in this Section 3(m) involves the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(n) The Company shall enter into such customary agreements and take
all such other necessary actions in connection therewith (including those
reasonably requested by the holders of a majority of the Registrable Securities
being sold) in order to expedite or facilitate disposition of such Registrable
Securities; provided, that the Company will not be required to take any action
in connection with an underwritten offering without its consent.
(o) The Company shall (i) make reasonably available for inspection
by one or more representatives of the selling Holders, designated in writing by
a Majority of Holders whose Registrable Securities are included in a Shelf
Registration Statement, any underwriter participating in any disposition
pursuant to any Shelf Registration Statement, and any attorney, accountant or
other agent retained by such Notice Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and (ii) cause the Company's officers, directors
and employees to make reasonably available for inspection all information
reasonably requested by such Notice Holders or any such underwriter, attorney,
accountant or agent in connection with such Shelf Registration Statement, in
each case, as is customary for similar due diligence examinations; provided,
however, that such persons shall, at the Company's request, first agree in
writing with the Company that any information that is reasonably and in good
faith designated by the Company in writing as confidential at the time of
delivery, or inspection, as the case may be, of such information will be kept
confidential by such persons and will be used solely for the purposes of
exercising rights under this Agreement, unless such disclosure is made in
connection with a court proceeding or required by law, or such records,
information or documents become available to the public generally or through a
third party without an accompanying obligation of confidentiality; and provided
further that, if the foregoing inspection and information gathering would
otherwise disrupt the Company's conduct of its business, such inspection and
information gathering will, to the greatest extent possible, be coordinated on
behalf of the Notice Holders and the other parties entitled thereto by one
counsel designated by and on behalf of the Notice Holders and other parties.
(p) The Company will use its best efforts to cause the Common Stock
issuable upon conversion of the Notes or exercise of Warrants to be quoted or
listed on the Nasdaq National Market or other market or stock exchange on which
the Common Stock primarily trades on or prior to the Effective Time of each
Shelf Registration Statement hereunder.
(q) The Company will make, cooperate and assist in any filings
required to be made with National Association of Securities Dealers, Inc.
(r) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement contemplated
hereby.
(s) The Company shall furnish to each of the underwriter(s), if any,
and their respective counsel, if any, before filing with the Commission, a copy
of the Shelf Registration Statement and copies of any Prospectus included
therein or any amendments or supplements to the Shelf Registration Statement or
Prospectus (other than documents incorporated by reference after the initial
filing of the Shelf Registration Statement), which documents will be subject to
the review of such underwriter(s) and counsel, for a period of at least five
Business Days, and the Company will not file the Shelf Registration Statement or
Prospectus or any amendment or supplement to the Shelf Registration Statement or
Prospectus (other than documents incorporated by reference) to which a selling
Holder of Registrable Securities covered by the Shelf Registration Statement or
the underwriter(s), if any, shall reasonably object within five Business Days
after the receipt thereof. The Company shall also furnish to each of the
underwriter(s), if any, and their respective counsel, if any, before filing with
the Commission, if reasonably practicable, or otherwise promptly after filing
with the Commission, copies of any amendments to the Shelf Registration
Statement or supplements to the Prospectus (other than documents incorporated by
reference after the initial filing of the Shelf Registration Statement), and to
make the Company's representatives available for discussion of such amendments
or supplements and make such changes in such amendments or supplements prior to
the filing thereof, if reasonably practicable, or prepare and file further
amendments or supplements, as underwriter(s), if any, or their respective
counsel, if any, may reasonably request subject to the provisos contained in the
last sentence of Section 3(s) hereof. An objection by an underwriter or by
counsel to an underwriter shall be deemed to be a reasonable objection to such
filing if the Shelf Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains a material misstatement or
omission.
(t) The Company shall, if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf Registration Statement
or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and underwriter(s), if any,
may reasonably request to have included therein, including, without limitation:
(i) information relating to the "Plan of Distribution" of the Registrable
Securities, (ii) information with respect to the principal amount of Securities
or number of shares of Common Stock issued upon conversion of the Securities
being sold, (iii) the purchase price being paid therefor and (iv) any other
terms of the offering of the Registrable Securities to be sold in such offering;
provided, however, that with respect to any information requested for inclusion
by a selling Holder, this clause (t) shall apply only to such information that
relates to the Registrable Securities to be sold by such selling Holder; and
make all required filings of such Prospectus supplement or post-effective
amendment as soon as reasonably practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(u) Subject to any notice by the Company in accordance with this
Section 3 of the existence of any fact or even of the kind described in Section
3(d)(vi), the Company hereby consents to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto.
(v) If an underwriting agreement is entered into in connection with
the registration, the Company shall:
(i) upon request, furnish to each selling Holder and each
underwriter, in such substance and scope as they may reasonably request
and as are customarily made by issuers to underwriters in primary
underwritten offerings for selling security holders, upon the date of
closing of any sale of Registrable Securities in an Underwritten
Registration:
(A) a certificate, dated the date of such closing, signed by
the Chief Financial Officer of the Company confirming, as of the
date thereof, matters of the type set forth in the Purchase
Agreement and such other matters as such parties may reasonably
request;
(B) opinions, each dated the date of such closing, of counsel
to the Company covering such of the matters as are customarily
covered in legal opinions to underwriters in connection with
underwritten offerings of securities; and
(C) customary comfort letters, dated the date of such closing,
from the Company's independent accountants, in the customary form
and covering matters of the type customarily covered in comfort
letters to underwriters in connection with primary underwritten
offerings of securities;
(ii) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no less
protective than those set forth in Section 5 hereof with respect to all
parties to be indemnified; and
(iii) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause
(A) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the selling Holders pursuant
to this clause 3(v).
(w) The Company shall, before any public offering of Registrable
Securities, cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and qualification
of the Registrable Securities under the securities or "Blue Sky" laws of such
jurisdictions in the United States as the selling Holders or underwriter(s), if
any, may reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Shelf Registration Statement; provided, however, that
the Company shall not be required (i) to register or qualify as a foreign
corporation or a dealer of securities where it is not now so qualified or to
take any action that would subject it to the service of process in any
jurisdiction where it is not now so subject or (ii) to subject itself to
taxation in any such jurisdiction if it is not now so subject.
(x) The Company shall cause the Indenture to be qualified under the
TIA not later than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith, cooperate with the
Trustee and the holders of Debentures to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with the
terms of the TIA, and execute and use its commercially reasonable efforts to
cause the Trustee thereunder to execute all documents that may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner.
(y) The Company shall, if reasonably requested by the
underwriter(s), make appropriate officers of the Company reasonably available to
the underwriter(s) for meetings with prospective purchasers of the Registrable
Securities and prepare and present to potential investors customary "road show"
or marketing material in a manner consistent with other new issuances of other
securities similar to the Registrable Securities.
(z) Each Holder agrees by acquisition of a Registrable Security
that, upon receipt of any notice (a "Suspension Notice") from the Company of the
existence of any fact of the kind described in Section 3(d)(v) hereof, such
Holder will, and will use its reasonable efforts to cause any underwriter(s) in
an Underwritten Offering to, forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until:
(i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 3(d)(v) hereof; or
(ii) such Holder is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in
the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable
Securities that was current at the time of receipt of such notice of
suspension.
Section 4. Registration Expenses. The Company shall bear all fees
and expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any of the
Shelf Registration Statements are declared effective. Such fees and expenses
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with United States federal and state securities or "Blue Sky" laws to
the extent such filings or compliance are required pursuant to this Agreement
(including, without limitation, reasonable fees and disbursements of the counsel
specified in the next sentence in connection with "Blue Sky" qualifications of
the Registrable Securities under the laws of such jurisdictions as the Notice
Holders of a majority of the Registrable Securities being sold pursuant to a
Shelf Registration Statement may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company), (iii)
duplication expenses relating to copies of any Shelf Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) fees and disbursements of
counsel for the Company in connection with the Shelf Registration Statement, and
(v) reasonable fees and disbursements of the Trustee and its counsel and of the
registrar and transfer agent for the Common Stock. In addition, the Company
shall bear or reimburse the Notice Holders for the reasonable fees and
disbursements of one firm of legal counsel for the Holders (up to a maximum of
$5,000), but which may, upon the written consent of a majority of the Holders
(which shall not be unreasonably withheld), be another nationally recognized law
firm experienced in securities law matters designated by the Company. In
addition, the Company shall pay the internal expenses of the Company (including,
without limitation, all salaries and expenses of officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company.
Section 5. Indemnification and Contribution. (a) Indemnification by
the Company. The Company shall indemnify and hold harmless each Notice Holder,
each person, if any, who controls any such Notice Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each
Affiliate of any Notice Holder from and against any loss, claim, damage,
liability or expense whatsoever as incurred (including but not limited to
reasonable attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as any such loss, claim, damage, liability or expense (or action in respect
thereof) arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement or
any amendment thereto or any related preliminary prospectus or the Prospectus or
any amendment thereto of supplement thereof, or arises out of, or is based upon,
the omission or alleged omission to state therein any material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable to any such indemnified
party in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of, or is based upon, any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such indemnified party specifically for use therein;
and provided further, however, that the Company will not be liable to any such
indemnified party in any such case to the extent that such loss, claim, damage,
liability or expense arises from an offer or sale by a Notice Holder of
Registrable Securities during a Suspension Period, if such indemnified party is
a Notice Holder that received from the Company a notice of the commencement of
such Suspension Period prior to the making of such offer or sale. The foregoing
indemnity agreement is in addition to any liability that the Company may
otherwise have to any indemnified party. The Company will not be liable under
this Section 5(a) for any settlement of any action effected without its written
consent, which will not be unreasonably withheld; provided, however, that with
respect to actions pursuant to clauses (1), (2) and (3) of Section 5(c), no such
consent will be required.
(b) Indemnification by the Notice Holders. Each Notice Holder,
severally and not jointly, shall indemnify and hold harmless the Company, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
loss, claim, damage, liability or expense whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as any such
loss, claim, damage, liability or expense (or action in respect thereof) arises
out of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or any amendment
thereto or any related preliminary prospectus or the Prospectus or any amendment
thereto of supplement thereof, or arises out of, or is based upon, the omission
or alleged omission to state therein any material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission made therein was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Notice Holder specifically for use therein. In
no event shall the liability of any selling Notice Holder hereunder be greater
in amount than the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Securities pursuant to the Shelf Registration
Statement giving rise to such indemnification obligation. The foregoing
indemnity agreement is in addition to any liability that any Notice Holder may
otherwise have to the Company, and any such controlling person.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under this Section 5 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 5, notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under this Section 5. If any such claim or
action is brought against an indemnified party, and it notifies the indemnifying
party thereof, the indemnifying party will be entitled to participate therein
and, to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party will not be liable to the indemnified party under
this Section 5 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that a Majority of Holders will have
the right to employ counsel to represent jointly a Majority of Holders and its
respective directors, employees, officers and controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by a Majority of Holders against the Company under this Section 5 if
(1) employment of such counsel has been authorized in writing by the
indemnifying party, or (2) such indemnifying party has not employed counsel to
have charge of the defense of such proceeding within 30 days of the receipt of
notice thereof, or (3) such indemnified party has reasonably concluded that the
representation of such indemnified party and those directors, employees,
officers and controlling persons by the same counsel representing the
indemnifying party would be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests between them
or where there may be one or more defenses available to them that are different
from, additional to or in conflict with those available to the indemnifying
party, and in any such event ((1), (2) or (3)) the fees and expenses of such
separate counsel shall be paid by the indemnifying party as incurred. It is
understood that the indemnifying party will not be liable for the fees and
expenses of more than one separate firm (in addition to local counsel in each
jurisdiction) for all indemnified parties in connection with any proceeding or
related proceedings. No indemnifying party may, without the prior written
consent of the indemnified parties, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought hereunder (whether or not the
indemnified party or parties are actual or potential parties thereto) unless (x)
such settlement, compromise or judgment (i) includes an unconditional release of
such indemnified party from all liability arising out of such claim, action,
suit or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or failure to act by or on behalf of any indemnified
party, and (y) the indemnifying party confirms in writing its indemnification
obligations hereunder with respect to such settlement, compromise or judgment.
(d) Contribution. If the indemnification provided for in this
Section 5 is unavailable or insufficient to hold harmless an indemnified party
under subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages, expenses or liabilities (or actions in respect
thereof) referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party on the other from the
registration of the Registrable Securities pursuant to the Shelf Registration,
or (ii) if the allocation provided by the foregoing clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative fault of the
parties will be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or such Holder or such other indemnified party, as the case may
be, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
is deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). The Company and the Holders
agree that it would not be just and equitable if contribution pursuant to this
Section 5(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to herein. Notwithstanding any other provision of this Section 5(d), the Holders
of the Registrable Securities will not be required to contribute any amount in
excess of the amount by which the gross proceeds received by such Holders from
the sale of the Registrable Securities pursuant to the Shelf Registration
Statement exceeds the amount of damages which such Holders have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls such indemnified party within the meaning of the Securities Act or the
Exchange Act will have the same rights to contribution as such indemnified party
and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act will have the same rights to contribution as
the Company. The Holders' respective obligations to contribute pursuant to this
Section 5 are several in proportion to the respective amount of Registrable
Securities they have sold pursuant to a Registration Statement and not joint.
The remedies provided for in this Section 5 are not exclusive and do not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
(e) The indemnity and contribution provisions contained in this
Section 5 will remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or any person controlling such Holder, or by or on behalf of the
Company, its officers or directors or any person controlling the Company, and
(iii) any sale of Registrable Securities pursuant to the Shelf Registration
Statement.
Section 6. Holder's Obligations. Each Holder agrees, by acquisition
of the Registrable Securities, that no Holder of Registrable Securities will be
entitled to sell any Registrable Securities pursuant to a Shelf Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as required pursuant to
Section 3(a) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence.
Each Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Registrable Securities
as the Company may from time to time reasonably request. Any sale of any
Registrable Securities by any Notice Holder will constitute a representation and
warranty by such Notice Holder that the information relating to such Notice
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Notice Holder in connection with such disposition, that such Prospectus
does not as of the time of such sale contain any untrue statement of a material
fact relating to or provided by such Notice Holder or its plan of distribution
and that such Prospectus does not as of the time of such sale omit to state any
material fact relating to or provided by such Notice Holder or its plan of
distribution necessary in order to make the statements in such Prospectus, in
the light of the circumstances under which they were made, not misleading.
Section 7. Additional Interest. (a) If (i) on or prior to the 120th
day following the Issue Date, the Shelf Registration Statement has not been
filed with the Commission, (ii) on or prior to the 180th day following the Issue
Date, the Shelf Registration Statement is not declared effective under the
Securities Act by the Commission, (iii) except as provided in Section 2(c)
hereof, the Shelf Registration Statement is filed and declared effective but,
during the Effectiveness Period, shall thereafter cease to be effective or fail
to be usable for its intended purpose without such disability being cured within
10 Business Days by an effective post-effective amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report filed with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
that cures such failure, or (iv) prior to or on the 45th or 60th day as the case
may be, of any Suspension Period, such suspension has not been terminated or any
Suspension Periods exceed an aggregate of 90 days in any 360-day period, ( each
a "Registration Default"), the Company will pay interest in addition to the
interest then payable on the Notes, ("Additional Interest"), from and including
the day following the date of such Registration Default to but excluding the day
on which such Registration Default is cured, at an annual rate equal to 0.5% on
the Applicable Amount, which rate shall increase by an additional 0.5% per annum
every 90 days that such Registration Default is continuing, provided that such
Additional Interest shall under no circumstances exceed a maximum rate of 2.0%
per annum.
(b) So long as any Securities remain outstanding, the Company shall
notify the Trustee within 2 Business Days after each and every date on which an
event occurs in respect of which Additional Interest is required to be paid. Any
amounts of Additional Interest due pursuant to clause (a) of this Section 7 will
be payable in cash semi-annually in arrears on each Additional Interest Payment
Date, commencing with the first such date occurring after any such Additional
Interest commences to accrue, to Holders to whom regular interest is payable on
such Additional Interest Payment Date with respect to Securities that are
Registrable Securities. All accrued Additional Interest shall be paid by the
Company to Record Holders of Registrable Securities on each Additional Interest
Payment Date by wire transfer of immediately available funds or by federal bank
check. The Company agrees to deliver all notices, certificates and other
documents contemplated by the Indenture in connection with the payment of
Additional Interest.
All obligations of the Company set forth in this Section 7 that are outstanding
with respect to any Transfer Restricted Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such Registrable Security shall have been satisfied
in full; provided, however, that Additional Interest shall cease to accrue on
the day immediately prior to the date such Registrable Security ceases to be a
Registrable Security.
(c) Except as provided in Section 8(a) hereof, the Additional
Interest set forth in this Section 7 will be the exclusive remedy available to
the Holders of Registrable Securities for such Registration Default. In no event
will the Company be required to pay Additional Interest in excess of the
applicable maximum rate of 2.00% per annum set forth above, regardless of
whether one or multiple Registration Defaults exist.
Section 8. Information Requirements. The Company covenants that, if
at any time before the end of the Effectiveness Period the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder and take such further reasonable action as any Holder may
reasonably request in writing (including, without limitation, making such
reasonable representations as any such Holder may reasonably request), all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A under the Securities Act
and customarily taken in connection with sales pursuant to such exemptions. Upon
the written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company's most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding
the foregoing, nothing in this Section 8 shall be deemed to require the Company
to register any of its securities (other than the Registrable Securities) under
any section of the Exchange Act.
Section 9. Miscellaneous. (a) Specific Performance. The parties
hereto acknowledge that there would be no adequate remedy at law if the Company
fails to perform any of its obligations hereunder and that the Holders from time
to time may be irreparably harmed by any such failure, and accordingly agree
that the Holders, in addition to any other remedy to which they may be entitled
at law or in equity and without limiting the remedies available to the Notice
Holders under Section 7 hereof, are entitled to compel specific performance of
the obligations of the Company under this Registration Rights Agreement in
accordance with the terms and conditions of this Registration Rights Agreement,
in any court of the United States or any State thereof having jurisdiction.
(b) Amendments and Waivers. This Agreement, including this Section
9(b), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed by the Company
and a Majority of the Holders. Each Holder of Registrable Securities outstanding
at the time of any such amendment, waiver or consent or thereafter will be bound
by any amendment, waiver or consent effected pursuant to this Section 9(b),
whether or not any notice, writing or marking indicating such amendment, waiver
or consent appears on the Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and will be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company in a Notice and Questionnaire
or any amendment thereto;
(ii) if to the Company, to:
Immunomedics, Inc.
300 American Road
Morris Plains, New Jersey 07950
Attention: Gerard Gorman, Chief Financial Officer
Facsimile: (973) 605-8282
with a copy to:
Cadwalader Wickersham & Taft LLP
One World Financial Center
New York, New York 10281
Attention: Gerald A. Eppner, Esq.
Facsimile: (212) 504-6666
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Parties in Interest. The parties to this Agreement intend that
all Holders of Registrable Securities shall be entitled to receive the benefits
of this Agreement and that any Notice Holder will be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities acquires Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee will, without any further writing or action of any kind, be entitled
to receive the benefits of and, if a Notice Holder, will be conclusively deemed
to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and do not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement is governed by and construed in
accordance with the laws of the State of New York.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof will not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties hereto are enforceable to the fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this Agreement or
made pursuant hereto will remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Notice Holder, any director, officer or partner of such Holder, any agent
or underwriter, any director, officer or partner of such agent or underwriter,
or any controlling person of any of the foregoing, and will survive the transfer
and registration of the Registrable Securities of such Holder.
Section 10. Submission to Jurisdiction; Appointment of Agent for
Service. The Company agrees that any suit, action or proceeding against the
Company arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any state or federal court in The City
of New York, New York, and waives any objection which it may now or hereafter
have to the laying of venue of any such proceeding, and irrevocably submits to
the non-exclusive jurisdiction of such courts in any suit, action or proceeding.
The Company expressly accepts the non-exclusive jurisdiction of any such court
in respect of any such suit, action or proceeding. The Company agrees that a
final judgment in any such proceeding brought in any such court will be
conclusive and binding thereupon and may be enforced in any other court in the
jurisdiction to which the Company is or may be subject by suit upon such
judgment.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
Immunomedics, Inc.
By:____________________________________
Name:
Title:
Accepted as of the date hereof:
[Purchaser]
By:__________________________________
Name:
Title:
Exhibit 1
Exhibit 1 To Election and Questionnaire
Notice of Transfer of Transfer Restricted Securities
Immunomedics, Inc.
300 American Road
Morris Plains, New Jersey 07950
Re: Immunomedics, Inc.'s
5% Convertible Senior Notes due 2008 (the "Notes")
--------------------------------------------------
Dear Sirs:
Please be advised that __________ has transferred Transfer
Restricted Securities (as defined in Appendix A to the Registration Rights
Agreement, dated as of April [__], 2005 by and among the Company and the
purchasers listed therein (the "Registration Rights Agreement") and such
person's rights under the Registration Rights Agreement related to such Transfer
Restricted Securities to the following person and in the following amounts:
[Amount and Description]
[Name]
[Address]
Very truly yours,
[name]
By:____________________________
(Authorized Signature)
Dated:__________________