CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT (the
"Agreement") dated as of June 27, 1996 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 D Convertible Preferred Stock, par value
$0.01 per share (the "Series D 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 D Preferred
1.1 Purchase and Sale of Series D 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 D
Preferred as is set forth opposite such Purchaser's name on the
signature page hereto. The Series D 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. Capitalized terms used herein not otherwise
defined shall have the meanings set forth in the Certificate of
Designation.
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 June 27, 1996 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 could
reasonably be expected to 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 as of June 21, 1996 is
as set forth in Schedule 2.1(c). No shares of Common Stock or
other securities of the Company are entitled to preemptive rights.
Except as disclosed in Schedule 2.1(c), as of June 21, 1996, there
were 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 that could not, individually or in
the aggregate, reasonably be expected to 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 could not reasonably be expected to 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 previously has delivered to the
Purchasers or their representatives 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 could reasonably be
expected to have 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 statute, 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, (A) during the
40-day restricted period, 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) and (B) following the expiration of the
40-day restricted period, 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, (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, 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
for the 10 Trading Days 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, a Purchaser, shall be entitled to
convert only such number of Shares such that the number of shares
of Common Stock that such Purchaser 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 not 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 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, (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, 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 Sales
Price on the date of issuance, that is less than the Conversion
Price of the Series D Preferred Stock, as a percentage of the
Pricing Period Average Prices, then, upon the request of the
holders of a Majority in Interest 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 affect 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
has occurred that could reasonably be expected to have a Material
Adverse Effect on the Company.
(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 affect 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 that 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, consent or other communication
(collectively, "Communications") 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 the
signature page 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' notice
of such changed address to the other party hereto pursuant to this
Section 6.3. Any notice of a change in address shall be effective
upon receipt thereof.
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 consent of the other (which consent
may be withheld for any reason in the sole discretion of the party
from whom consent is sought) and any such purported assignment
shall be void, except that the Company shall assign this agreement
to any successor by merger or any purchaser of all or
substantially all of the assets of the Company. 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.
6.11 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.
6.12 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. Except to the extent required by law, neither
party shall issue any press release or otherwise make any public
statement without the prior consent of the other, which consent
shall not be unreasonably withheld or delayed.
6.13 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/ David M. Goldenberg
________________________
David M. Goldenberg
Chairman of the Board and
Chief Executive Officer
PURCHASERS' SIGNATURE PAGE
[Name of Purchaser]
By: ________________________
Name:
Title:
Shares Purchased:
Aggregate Purchase Price:
Address for Notice:
Schedule 2.1(a)
Name of Subsidiary Jurisdiction of Incorporation
___________________________ _____________________________
Immunomedics Ltd. Israel
(inactive corporation)
Immunomedics, B.V. Netherlands
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 0
Series C convertible 200,000 28,415
Series D convertible 200,000 0
Common Stock, $.01 par value 50,000,000 34,305,485
par value
Outstanding Options Warrants and Rights
The Company has outstanding options to purchase 2,270,475
shares of Common Stock, at prices ranging from $2.20 to $10.75.