EXHIBIT 4.3
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR
OFFERED FOR SALE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS.
Right to Purchase Shares of Common Stock
of Immunomedics, Inc.
___________________________
Common Stock Purchase Warrant
Immunomedics, Inc., a Delaware corporation having an address
at 000 Xxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx 00000 (the
"Company"), hereby certifies that for $10.00 and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Cripple Creek Securities, L.L.C. having an
address at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
("Purchaser") or any other Warrant Holder is entitled, on the
terms and conditions set forth below, to purchase from the Company
at any time after the date hereof (subject to the provisions of
Section 2 hereof) and ending forty-eight (48) months after the
date hereof, up to 50,000 fully paid and nonassessable shares of
Common Stock, $0.01 par value, of the Company (the "Common Stock")
at the Purchase Price (hereinafter defined), as the same may be
adjusted pursuant to Section 5 herein.
1. Definitions.
(a) The term "Warrant Holder" shall mean the Purchaser
or any assignee of all or any portion of this Warrant at any given
time who, at the time of assignment, acquired the right to
purchase at least 1000 Warrant Shares (such number being subject
to adjustment after the date hereof pursuant to Section 5 herein.)
(b) The term "Warrant Shares" shall mean the Shares of
Common Stock or other securities issuable upon exercise of this
Warrant.
(c) The term "Purchase Price" shall mean $7.5375,
which represents 180% of the closing sale price of the Common
Stock on the Principal Market on the Trading Day immediately
preceding the Effective Date.
(d) Other terms used herein which are defined in the
Structured Equity Line Flexible Financing (SM) Agreement dated as
of December 23, 1997 (the "Agreement") or the Registration Rights
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Agreement, dated as of December 23, 1997 (the "Registration Rights
Agreement"), shall have the same meanings herein as therein.
2. Exercise of Warrant.
This Warrant may be exercised by Warrant Holder, in whole or
in part, at any time and from time to time, on or after the date
hereof, by surrender of this Warrant, together with the Purchase
Price (as defined in Section 1) for each share of Common Stock as
to which the Warrant is exercised, and the form of subscription
attached hereto as Schedule A duly executed by Warrant Holder, to
the Company at its principal office; provided that in the event
that prior to such date (i) the Company declares a record date for
a material dividend or distribution in respect of the Common Stock
(representing at least 50% of the aggregate market value of the
Common Stock in cash or securities or other assets, other than
Common Stock); or (ii) if at any time (A) there occurs any
consolidation or merger of the Company with or into any other
corporation or other entity or person (whether or not the Company
is the surviving corporation) or there occurs any other corporate
reorganization or transaction or series of related transactions,
and as a result thereof the shareholders of the Company pursuant
to such merger, consolidation, reorganization or other transaction
own in the aggregate less than 50% of the voting power and common
equity of the ultimate parent corporation or other transaction, or
(B) the Company transfers all or substantially all of the
Company's assets to another corporation or other entity or person,
the Warrant shall become exercisable thereafter at the Adjusted
Purchase Price. The "Adjusted Purchase Price" shall equal the
lesser of (i) $7.5375 (as adjusted from time to time pursuant to
Section 5 hereof) and (ii) 80.0% (as adjusted from time to time
pursuant to Sections 5(c) and 5(f) hereof) of the Transaction
Value per share of Common Stock issuable upon exercise of the
Warrant. The term "Transaction Value" means, in the case of a
merger, acquisition, sale of Common Stock, sale of assets or
similar transaction, the fair market value of the consideration to
be received per share of Common Stock, as evidenced by the average
of the closing sale price for the Common Stock during the ten
Trading Days following the announcement of such definitive
agreement and in the case of a material special dividend or
distribution, the fair market value of the dividend or
distribution as determined in good faith by the Company's Board of
Directors; provided that if the dividend or distribution is in the
form of an instrument that trades "when issued," the fair market
value thereof shall be determined by reference to the average of
the closing sale price for such instrument in the when issued
market (or in the absence of a closing sale price, the average of
the closing bid and asked price) during the ten trading days
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following such record date. In the event that the Warrant is not
exercised in full, the number of Warrant Shares shall be reduced
by the number of Warrant Shares for which this Warrant is
exercised and the Company, at its expense, shall forthwith issue
and deliver to or upon the order of Warrant Holder a new Warrant
of like tenor in the name of Warrant Holder or as Warrant Holder
(upon payment by Warrant Holder of any applicable transfer taxes)
may request, reflecting such adjusted Warrant Shares.
(a) Subject to the terms and conditions of this
Warrant, as soon as practicable after the exercise of this Warrant
in full or in part, and in any event within three (3) Trading Days
thereafter, the Company at its expense (including, without
limitation, the payment by it of any applicable issue taxes) will
cause to be issued in the name of and delivered to Warrant Holder,
or as Warrant Holder (upon payment by Warrant Holder of any
applicable transfer taxes) may lawfully direct, a certificate or
certificates for the number of fully paid and non-assessable
shares of Common Stock to which Warrant Holder shall be entitled
on such exercise, together with any other stock or other
securities or property (including cash, where applicable) to which
Warrant Holder is entitled upon such exercise.
(b) This Warrant may not be exercised as to fractional
shares of Common Stock. In the event that the exercise of this
Warrant, in full or in part, would result in the issuance of any
fractional share of Common Stock, then in such event Warrant
Holder shall be entitled to cash equal to the Fair Market Value of
such fractional share. For purposes of this Warrant, Fair Market
Value equals the closing sale price of the Common Stock on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market, whichever is the principal trading exchange or
market for the Common Stock (the "Principal Market") on the date
of determination.
(c) Notwithstanding any provision of this Section 2,
as of any date prior to the date of exercise of this Warrant or
any portion thereof, the aggregate number of shares of Common
Stock into which this Warrant, all other warrants and all other
securities convertible into or exchangeable for Common Stock held
by the Warrant Holder and its affiliates shall be convertible or
exchangeable, together with the shares of Common Stock then
beneficially owned (as such term is defined in the Exchange Act)
by such Warrant Holder and its affiliates, shall not exceed 4.9%
of the total outstanding shares of Common Stock as of such date.
This Warrant shall not be exercisable on any date to the extent
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that such exercise would limit the ability of the Purchaser to
purchase shares of Common Stock as a result of a Mandatory
Purchase Notice or an Additional Purchase Notice (as such terms
are defined in the Agreement) pursuant to Section 2.1(c) of the
Agreement.
3. [Intentionally Omitted.]
4. Covenants of the Company.
(a) The Company shall use its reasonable best efforts
to insure that a Registration Statement under the Securities Act
covering the resale or other disposition thereof of the Warrant
Shares by Warrant Holder is effective to the extent as provided in
the Registration Rights Agreement or, to the extent applicable,
pursuant to Section 3.2(a) of the Agreement.
(b) The Company shall take all necessary actions and
proceedings as may be required and permitted by applicable law,
rule and regulation, including, without limitation the
notification of the National Association of Securities Dealers,
for the legal and valid issuance of this Warrant and the Warrant
Shares to the Warrant Holder under this Warrant.
(c) From the date hereof through the last date on
which this Warrant is exercisable, the Company shall take all
steps reasonably necessary and within its control to insure that
the Common Stock remains listed on the Principal Market and shall
not amend its Certificate of Incorporation or Bylaws so as to
constitute a breach of the Company's obligations hereunder or so
as to adversely affect any rights of the Warrant Holder under this
Warrant.
(d) The Company shall at all times reserve and keep
available, solely for issuance and delivery as Warrant Shares
hereunder, such shares of Common Stock as shall from time to time
be issuable as Warrant Shares.
(e) The Warrant Shares, when issued in accordance with
the terms hereof, will be duly authorized and, when paid for or
issued in accordance with the terms hereof, shall be validly
issued, fully paid and non-assessable. The Company has authorized
and reserved for issuance to Warrant Holder the requisite number
of shares of Common Stock to be issued pursuant to this Warrant.
(f) With a view to making available to Warrant Holder
the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time
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permit the Warrant Holder to sell securities of the Company to the
public without registration, the Company agrees to use its
reasonable best efforts to:
(i) make and keep public information available,
as those terms are understood and defined in Rule 144, at all
times;
(ii) file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) furnish to any Warrant Holder forthwith
upon request a written statement by the Company that it has
complied with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports
and documents so filed by the Company as may be reasonably
requested to permit any such Warrant Holder to take advantage of
any rule or regulation of the SEC permitting the selling of any
such securities without registration.
5. Adjustment of Exercise Price and
Number of Shares.
The number of, and kind of, securities purchasable upon
exercise of this Warrant and the Purchase Price shall be subject
to adjustment from time to time as follows:
(a) Subdivisions. Combinations and Other Issuances.
If the Company shall at any time after the date hereof but prior
to the expiration of this Warrant subdivide its outstanding
securities as to which purchase rights under this Warrant exist,
by split-up, spin-off, or otherwise, or combine its outstanding
securities as to which purchase rights under this Warrant exist,
the number of Warrant Shares as to which this Warrant is
exercisable as of the date of such subdivision, split-up, spin-off
or combination shall forthwith be proportionately increased in the
case of a subdivision, or proportionately decreased in the case of
a combination. Appropriate adjustments shall also be made to the
Purchase Price payable per share, but the aggregate purchase price
payable for the total number of Warrant Shares purchasable under
this Warrant as of such date shall remain the same.
(b) Stock Dividend. If at any time after the date
hereof the Company declares a dividend or other distribution on
Common Stock payable in Common Stock or other securities or rights
convertible into Common Stock ("Common Stock Equivalents") without
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payment of any consideration by holders of Common Stock for the
additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon
exercise or conversion thereof), then the number of shares of
Common Stock for which this Warrant may be exercised shall be
increased as of the record date (or the date of such dividend
distribution if not record date is set) for determining which
holders of Common Stock shall be entitled to receive such
dividends, in proportion to the increase in the number of
outstanding shares (and shares of Common Stock issuable upon
conversion of all such securities convertible into Common Stock)
of Common Stock as a result of such dividend, and the Purchase
Price per share shall be adjusted so that the aggregate amount
payable for the purchase of all the Warrant Shares issuable
hereunder immediately after the record date (or on the date of
such distribution, if applicable), for such dividend shall equal
the aggregate amount so payable immediately before such record
date (or on the date of such distribution, if applicable).
(c) Other Distributions. If at any time after the date
hereof the Company distributes to holders of its Common Stock,
other than as part of its dissolution, liquidation or the winding
up of its affairs, any shares of its capital stock, any evidence
of indebtedness or any of its assets (other than cash, Common
Stock or securities convertible into or exchangeable for Common
Stock), then the Company shall decrease the per share Purchase
Price of this Warrant by an appropriate amount based upon the
value distributed on each share of Common Stock as determined in
good faith by the Company's Board of Directors.
(d) Merger, Etc. If at any time after the date hereof
there shall be a merger or consolidation of the Company with or
into or a transfer of all or substantially all of the assets of
the Company to another entity, then the Warrant Holder shall be
entitled to receive upon payment of the aggregate Purchase Price
then in effect, the number of shares or other securities or
property of the company or of the successor corporation resulting
from such merger or consolidation, which would have been received
by Warrant Holder for the shares of stock subject to this Warrant
had this Warrant been exercised just prior to such transfer,
merger or consolidation becoming effective or to the applicable
record date thereof, as the case may be.
(e) Reclassification, Etc. If at any time after the
date hereof there shall be a reorganization or reclassification of
the securities as to which purchase rights under this Warrant
exist into the same or a different number of securities of any
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other class or classes, then the Warrant Holder shall thereafter
be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the Purchase Price
then in effect, the number of shares or other securities or
property resulting from such reorganization or reclassification,
which would have been received by the Warrant Holder for the
shares of stock subject to this Warrant had this Warrant at such
time been exercised.
(f) Purchase Price Adjustment. In the event that the
Company issues or sells any Common Stock or securities which are
convertible into or exchangeable for its Common Stock or any
convertible securities, or any warrants or other rights to
subscribe for or to purchase or any options for the purchase of
its Common Stock or any such convertible securities (other than
shares or options issued or which may be issued to any employee,
officer, director or consultant of the Company pursuant to any
stock or option or similar equity-based compensation plans or
otherwise now or hereafter established or shares issued upon
exercise of options, warrants or rights outstanding on the date of
the Agreement and listed in the SEC Documents) at an effective
purchase price per share which is less than ninety percent (90%)
of the Fair Market Value (including any applicable underwriting
discounts and/or commissions) of the Common Stock on the Trading
Day next preceding such issue or sale (as the case may be), then
in each such case, the Purchase Price in effect immediately prior
to such issue or sale shall be reduced effective concurrently with
such issue or sale to an amount determined by multiplying the
Purchase Price then in effect by a fraction, (x) the numerator of
which shall be the sum of (1) the number of shares of Common Stock
outstanding immediately prior to such issue or sale, including,
without limitation, under any provision of the Warrants plus (2)
the number of shares of Common Stock which the aggregate
consideration received by the Company for such additional shares
would purchase at such Fair Market Value and (y) the denominator
of which shall be the number of shares of Common Stock of the
Company outstanding immediately after such issue or sale
including, without duplication, those deemed to have been issued
under any provision of the Warrants. For purposes of the foregoing
fraction, Common Stock outstanding shall include, without
limitation, any Equity Offerings (as defined in the Agreement)
then outstanding, whether or not they are exercisable or
convertible when such fraction is to be determined.
The number of shares which may be purchased hereunder shall
be increased proportionately to any reduction in Purchase Price
pursuant to this paragraph 5(f), so that after such adjustments
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the aggregate Purchase Price payable hereunder for the increased
number of shares of Common Stock shall be the same as the
aggregate Purchase Price in effect just prior to such adjustment.
Notwithstanding anything else contained in this warrant to
the contrary, there shall be no adjustment of the Purchase Price
or the number of shares of Common Stock issuable pursuant to the
exercise of this Warrant in the event that during the term of this
Warrant, the Company issues shares of Common Stock, or securities
convertible into Common Stock to the Purchaser.
(g) Adjustments: Additional Shares, Securities or
Asset. In the event that at any time, as a result of an
adjustment made pursuant to this Section 5, the Warrant Holder
shall, upon exercise of this Warrant, become entitled to receive
shares and/or other securities (other than Common Stock) then,
wherever appropriate, all references herein to shares of Common
Stock shall be deemed to refer to and include such shares and/or
other securities or assets; and thereafter the number of such
shares and/or other securities or assets shall be subject to
adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 5.
6. No Impairment.
The Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at
all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Warrant Holder
against impairment. Without limiting the generality of the
foregoing, the Company (a) will not increase the par value of any
Warrant Shares above the amount payable therefor on such exercise,
and (b) will take all such action as may be reasonably necessary
or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares on the exercise
of this Warrant. By acceptance hereof, the Holder of this Warrant
acknowledges and agrees that the transactions specified in Section
2(i) and (ii) hereof shall not constitute an impairment of the
rights of the Warrant Holder hereunder.
7. Notice of Adjustments.
Whenever the Purchase Price or number of Warrant Shares
purchasable hereunder shall be adjusted pursuant to Section 5
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hereof, the Company shall execute and deliver to the Warrant
Holder a certificate setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated and the Purchase
Price and number of shares purchasable hereunder after giving
effect to such adjustment, and shall cause a copy of such
certificate to be mailed (by first class mail, postage prepaid) to
the Warrant Holder.
8. Rights As Stockholder.
Prior to exercise of this Warrant, the Warrant Holder shall
not be entitled to any rights as a stockholder of the Company with
respect to the Warrant Shares, including (without limitation) the
right to vote such shares, receive dividends or other
distributions thereon or be notified of stockholder meetings.
However, in the event of any taking by the Company of a record of
the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any
dividend or other distribution (other than a cash dividend) any
right to subscribe for, purchase or otherwise acquire any shares
of stock of any class or any other securities or property, or to
receive any other right, the Company shall mail to each Warrant
Holder, at least 10 days prior to the date specified, therein, a
notice specifying the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and the
amount and character of such dividend, distribution or right.
9. Replacement of Warrant.
On receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of the Warrant and,
in the case of any such loss, theft or destruction of the Warrant,
on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of
any such mutilation, on surrender and cancellation of such
Warrant, the Company at its expense will execute and deliver, in
lieu thereof, a new Warrant of like tenor.
10. Specific Enforcement; Consent to
Jurisdiction; Waiver of Jury Trial.
(a) The Company and the Warrant Holder acknowledge and
agree that irreparable damage would occur in the event that any of
the provisions of this Warrant were not performed in accordance
with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an
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injunction or injunctions to prevent or cure breaches of the
provisions of this Warrant and to enforce specifically the terms
and provisions hereof, this being in addition to any other remedy
to which either of them may be entitled by law or equity.
(b) Each of the Company and the Warrant Holder hereby
(i) agree that all actions or proceedings arising directly or
indirectly from or in connection with this Warrant shall be
litigated only in the Supreme Court of the State of New York or
the United States District Court for the Southern District of New
York located in New York County, New York and (ii) to the extent
permitted by applicable law, consent to the jurisdiction and venue
of the foregoing courts and consent that any process or notice of
motion or other application to either of said courts or a judge
thereof may be served inside or outside the State of New York or
the Southern District of New York by registered mail, return
receipt requested, directed to the such party at its address set
forth in this Warrant (and service so made shall be deemed
complete five (5) days after the same has been posted as
aforesaid) or by personal service or in such other manner as may
be permissible under the rules of said courts. The parties hereto
hereby waive any right to a jury trial in connection with any
litigation pursuant to this Warrant.
11. Entire Agreement: Amendments.
This Warrant, the Exhibits hereto and the provisions
contained in the Agreement, the Registration Rights Agreement and
incorporated into this Warrant and the Warrant Shares contain the
entire understanding of the parties with respect to the matters
covered hereby and thereby and except as specifically set forth
herein and therein. This Warrant and any term thereof may be
changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought.
12. Restricted Securities.
Sections 6.5, 7.1, 7.2 and 7.3 of the Agreement are
incorporated herein by reference and hereby made a part hereof.
13. Notices.
Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be effective (a)
upon hand delivery or delivery by telex (with correction answer
back received), telecopy or facsimile at the address or number
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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.
000 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
Fax: (000) 000-0000
with copies to:
Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxx and
Kuh, LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
to the Warrant Holder:
Cripple Creek Securities, LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
with copies to:
The Palladin Group, L.P.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
and
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Xxxxx Xxxxxx, Esq.
Xxxxxx & Xxxxxx
000 00xx Xxxxxx, X.X.
Washington, D.C. 20004
Fax: (000) 000-0000
Either party hereto may from time to time change its address for
notices under this Section 13 by giving at least 10 days prior
written notice of such changed address to the other party hereto.
14. Miscellaneous.
This Warrant shall be construed and enforced in accordance
with and governed by the laws of the State of New York. The
headings in this Warrant are for purposes of reference only, and
shall not limit otherwise affect any of the terms hereof. The
invalidity or unenforceability of any provision hereof shall in no
way affect the validity or enforceability of any other provisions.
15. Expiration
The right to exercise this Warrant shall expire forty-eight
(48) months after the date hereof.
Dated: December 23, 1997
IMMUNOMEDICS, INC.
By: __________________________
Title: ___________________
[CORPORATE SEAL]
Attest:
By: ________________________
Its:
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SCHEDULE A
FORM OF WARRANT EXERCISE
(To be signed only on exercise of Warrant)
TO _________________________________
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise this Warrant for, and to purchase
thereunder, ________ shares of Common Stock of Immunomedics, Inc.,
a Delaware corporation (the "Company"), and herewith makes payment
of $ ____________ therefor, and requests that the certificates for
such shares be issued in the name of, and delivered to
_______________________________________, whose address is
_________________________________.
Dated: ____________________________________
(Signature must conform to name of holder as specified
on the face of the Warrant)
____________________________________
(Address)
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