This COMMON STOCK PRIVATE PLACEMENT
AGREEMENT (the "Agreement") has been entered into as
of February 14, 2000, by and among IMMUNOMEDICS,
INC., a Delaware corporation (the "Company"), and the
PURCHASERS listed on Exhibit A (individually a
"Purchaser" and collectively the "Purchasers").
This Agreement has been executed by the parties in connection
with the private placement of shares of Common Stock (the "Shares") of the
Company. The parties hereby agree as follows:
1. Agreement to Subscribe; Payment; Subscription Irrevocable.
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(a) Each Purchaser hereby subscribes for the number of Shares shown
on Exhibit A next to its name at a price of $16.00 per Share
payable to the Company;
(b) Payment for the Shares shall take place no later than three
business days after the execution and delivery of this Agreement
(the "Closing"). The Closing will take place at the offices of
Sutro & Co., Inc. (the "Placement Agent") at 00000 Xxxxx Xxxxxx
Xxxx., Xxx Xxxxxxx, XX. At the Closing the Company will deliver
to the Purchasers the Shares against payment of the aggregate
purchase price by wire transfer payable to the Placement Agent on
behalf of the Company pursuant to the instructions shown on
Exhibit B. The Shares shall be registered in Purchasers' names,
or the names of designated nominees, in such denominations as
shown in Exhibit A.
(c) Each Purchaser understands that, except as provided in this
Agreement, this subscription may not be revoked by a Purchaser,
and that the execution and delivery of this Agreement will not
constitute an agreement between the Purchaser and the Company
until this Agreement has been accepted by the Company, and then
subject to the terms and conditions of this Agreement.
2. Qualifications of Investor.
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(a) Accredited Investor Status. Each Purchaser hereby represents and
warrants to the Company that it is an accredited investor within
the meaning of Regulation D promulgated by the Securities and
Exchange Commission (the "SEC")
(b) Each Purchaser represents and warrants that:
(i) It has not been formed, reformed or recapitalized for the
specific purpose of purchasing the Shares;
(ii) It has been duly formed and is validly existing in good
standing under the laws of the jurisdiction of its
formation, with full power and authority to enter into the
transactions contemplated by this Agreement; and
(iii)This Agreement has been duly and validly authorized,
executed, and delivered by it and when executed and
delivered by the Company, will constitute the valid, binding
and enforceable agreement of the Purchaser.
3. Independent Investigation.
-------------------------
(a) Independent Investigation. Each Purchaser, in making the decision
to purchase the Shares subscribed for, has relied upon
independent investigation made by it and its representatives
which it deems to be adequate and they have reviewed the
Company's Form 10Q for the quarter ended September 30, 1999 and
the pertinent parts of the Company's S-3 Registration Statement
filed with the SEC on January 11, 2000.
(b) No Governmental Recommendation or Approval. The undersigned
understands that no federal or state agency has passed on or made
any recommendation or endorsement of the Shares.
THE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
THE SECURITIES LAWS OF ANY STATE AND THERE ARE RESTRICTIONS ON THE
TRANSFERABILITY OF THE SHARES.
4. Investment Representations.
--------------------------
(a) Shares Not Registered; Indefinite Holding. Each Purchaser has
been advised by the Company, and understands, that it must bear
the economic risk of an investment in the Shares for an
indefinite period of time because the Shares have not yet been
registered under the Securities Act. Therefore, the Shares must
be held by the Purchaser until they are subsequently registered
under the Securities Act or an exemption from such registration
is available for the transfer of the Shares.
(b) Purchase for own Account. Each Purchaser represents that the
Shares are being acquired solely for its own account for
investment and not with a view toward, or for resale in
connection with, any "distribution" (as that term is used in the
Securities Act and its Rules and Regulations) of any Shares.
(c) No Disposition of Shares Without Securities Law Compliance. Each
Purchaser agrees not to subdivide the Shares or to offer, sell,
pledge, hypothecate or otherwise transfer or dispose of any of
the Shares in the absence of an effective registration statement
under the Securities Act covering such disposition, or an opinion
of counsel, satisfactory to the Company and its counsel, to the
effect that registration under the Securities Act is not required
in respect of such transfer or disposition.
(d) Stop-Transfer and Legends on Certificates. Each Purchaser further
understands that a stop-transfer order will be placed on the
stock-transfer books of the Company respecting the certificates
evidencing the Shares, and such certificates shall bear, until
such time as the Shares shall have been registered under the
Securities Act or shall have been transferred in accordance with
such an opinion of counsel, the following legend (or one
substantially similar).
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
SAID ACT, OR AN AVAILABLE EXEMPTION THEREUNDER.
plus any legend that may be required under any applicable state
law.
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(e) "Private Offering" Exemption; Reliance on Representations. The
undersigned understands that the offer and sale of the Shares are
not being registered under the Securities Act in reliance on the
so-called "private offering" exemption provided by Section 4(2)
of the Securities Act and/or Regulation D promulgated pursuant to
the Securities Act, and that the Company is basing its reliance
on that exemption in part on the representations, warranties,
statements and agreements contained in this Agreement.
5. Indemnification.
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Each Purchaser agrees to indemnify and hold the Company, its officers,
directors and stockholders or any other person who may be deemed to
control the Company harmless from any loss, liability, claim, damage or
expense, arising out of the inaccuracy of any of the above
representations, warranties or statements or the breach of any of the
agreements contained in this Agreement, and this indemnification shall
survive the purchase and sale of the Shares.
6. Conditions to the Company's Obligation to Sell.
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Each Purchaser understands that the Company's obligation to sell the
Shares is conditioned upon:
(a) the receipt and acceptance by the Company of a fully executed
Agreement for all of the Shares to be purchased in the particular
offering (i.e., either the initial offering of a minimum of 1.5
million Shares or any subsequent offerings of up to an aggregate
of an additional 500,000 Shares); and
(b) No injunction, order, investigation, claim, action or proceeding
before any court or governmental body shall be pending or
threatened wherein an unfavorable judgment, decree or order would
restrain, impair or prevent the carrying out of this Agreement or
any of the transactions contemplated thereby, declare unlawful
the transactions contemplated by this Agreement or cause any such
transaction to be rescinded.
7. Conditions to Purchasers' Obligation to Purchase.
------------------------------------------------
Purchasers' obligation to purchase the Stock in accordance with the
terms of this Agreement is conditioned upon:
(a) Purchasers shall have received from STARR, GERN, XXXXXXX & XXXXX,
counsel for the Company, its opinion dated the Closing Date in
the form of Exhibit C; and
(b) All of the representations and warranties of the Company
contained in this Agreement shall be true and correct at and as
of the Closing Date; and
(c) No injunction, order, investigation, claim, action or proceeding
before any court or governmental body shall be pending or
threatened wherein an unfavorable judgment, decree or order would
restrain, impair or prevent the carrying out of this Agreement or
any of the contemplated transactions, declare unlawful the
transactions contemplated by this Agreement or cause any such
transaction to be rescinded;
(d) The Company shall have delivered to Purchasers the following:
(i) a certificate of the Secretary of the Company, dated the
Closing Date, as to the continued and valid existence of the
Company, certifying the attached copy of the By-laws of the
Company, the authorization of the execution, delivery and
performance of this Agreement, and the resolutions adopted
by the Board of Directors of the Company authorizing the
actions to be taken by the Company under this Agreement;
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(ii) a certificate of the Secretary of State of the State of
Delaware, dated a recent date, to the effect that the
Company is in good standing in the State of Delaware and
that all annual reports, if any, have been filed as required
and, if readily available that all franchise taxes and fees
have been paid in connection therewith;
(iii)a certified copy of the Certificate of Incorporation of the
Company as filed with the Secretary of State of the State of
Delaware, including any amendments thereto; and
(e) The Company shall have received from these certain Purchasers
pursuant to an Agreement dated as of December 15, 1999 between
those Purchasers and the Company, their written consent to the
filing of the Shelf Registration Statement described in Section
10 below.
8. Representations and Warranties of the Company.
---------------------------------------------
The representations and warranties of the Company in this Agreement are
subject to and qualified by the disclosures made in the Company's most
recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q, as
filed with the SEC (the "SEC Documents"). The Company hereby represents
and warrants to each Purchaser as of the Closing as follows:
(a) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware. The Company is eligible to be treated as a C
corporation under the Internal Revenue Code of 1986, as amended
(the "Code"). The Company has all requisite corporate power and
authority, and holds all licenses, permits and other required
authorizations from governmental authorities, necessary to
conduct its business as now being conducted or proposed to be
conducted and to own or lease the properties and assets now owned
or held under license or lease. The Company is duly qualified or
licensed and in good standing as a foreign corporation in each
jurisdiction wherein the character of its properties or the
nature of the activities conducted by it makes such qualification
or licensing necessary, except where the failure to so qualify
would not have a material adverse effect on the Company.
(b) Capitalization. As of January 11, 2000, the Company's authorized
capitalization consists of 70,000,000 shares of Common Stock, of
which 43,655,709 shares are issued and outstanding, and
10,000,000 shares of preferred stock, par value $.01 per share
(of which 595.5 shares are designated as Series F Convertible
Preferred Stock but none of which are issued and outstanding).
15,022,288 shares of Common Stock are reserved for issuance upon
the conversion or exercise of convertible securities, options,
warrants or other rights to purchase Common Stock outstanding as
of the Closing Date. All outstanding securities of the Company
are validly issued, fully paid and nonassessable. No stockholder
of the Company is entitled to any preemptive rights with respect
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to the purchase or sale of any securities by the Company. There
are no outstanding options, warrants or other rights, commitments
or arrangements, written or oral, to purchase or otherwise
acquire any authorized but unissued shares of capital stock of
the Company or any security directly or indirectly convertible
into or exchangeable for any capital stock of the Company or
under which any such option, warrant or convertible security may
be issued in the future except otherwise as set forth on Schedule
8(b). There are no voting trusts or agreements, stockholders'
agreements, pledge agreements, buy-sell, rights of first offer,
negotiation or refusal or proxies or similar arrangements
relating to any securities of the Company to which the Company is
a party, and to the best knowledge of the Company after due
inquiry there are no other such trusts, agreement, rights,
proxies or similar arrangements. Except as otherwise set forth on
Schedule 8(b) or as contemplated by this Agreement, none of the
shares of capital stock of the Company is reserved for any
purpose, and the Company is neither subject to any obligation
(contingent or otherwise), nor has any option to repurchase or
otherwise acquire or retire any shares of its capital stock. (c)
Due Authorization, Valid Issuance, Etc. The Shares to be
purchased on the Closing Date have been duly authorized and, when
issued in accordance with this Agreement upon the Closing Date,
will be validly issued, fully paid and non-assessable and will be
free and clear of all liens imposed by or through the Company,
subject only to restrictions set forth herein, as applicable, or
applicable federal and state securities laws. The issuance, sale
and delivery of such Shares, will not be subject to any
preemptive right of stockholders of the Company or to any right
of first refusal or other right in favor of any person or entity
except for provisions which have been waived or satisfied and as
set forth on Schedule 8(c).
(d) Subsidiaries. The Company has no wholly or partially owned
Subsidiaries and does not control, directly or indirectly, any
other corporation, business trust, firm, partnership,
association, joint venture, entity or organization. Except as set
forth on Schedule 8(d), the Company does not own any shares of
stock, partnership interest, joint venture interest or any other
security, equity or interest in any other corporation or other
Person.
(e) Company Power. The Company has the full corporate power and
authority to execute, deliver and enter into this Agreement and
to perform its obligations, and the execution, delivery and
performance of this Agreement and all other contemplated
transactions have been duly authorized by the Company. This
Agreement constitutes a legal, valid and binding obligation of
the Company, which is not in contravention of any other
agreements of the Company, and this Agreement is enforceable in
accordance with its terms except as such enforceability may be
limited by (a) bankruptcy, insolvency, moratorium and similar
laws affecting creditors' rights generally and (b) the
availability of remedies under general equitable principles.
(f) No Material Adverse Change. Since September 30, 1999, except as
disclosed on Schedule 8(f) there has not at any time been (a) any
material adverse change in the business, financial condition,
operating results, business prospects, employee relations or
customer relations of the Company, or (b) other adverse changes,
which in the aggregate have been materially adverse to the
Company. Except as set forth on Schedule 8(f), no event or
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circumstance has occurred or exists with respect to the Company
or its business, properties, prospects, operations or financial
condition, which, under applicable law, rule or regulation,
requires public disclosure or announcement by the Company but
which has not been so publicly announced or disclosed.
(g) Disclosure. Neither this Agreement nor any of the schedules,
exhibits, written statements, documents or certificates prepared
or supplied by the Company with respect to the transactions
contemplated by this Agreement, nor any document filed with the
Securities and Exchange Commission after January 1, 1999 contain
any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading
in light of the circumstances under which made. Except for
general factors that are common in the market and industry of the
Company, there exists no fact or circumstance which, to the best
knowledge of the Company after due inquiry, materially adversely
affects, or which could reasonably be anticipated to have a
material adverse effect on, the existing or expected financial
condition, operating results, assets, customer relations,
employee relations or business prospects of the Company.
(h) Absence of Certain Developments. Except as contemplated by this
Agreement, and except as set forth on Schedule 8(h) since
September 30, 1999 the Company has not, nor will have prior to
the Closing Date: (i) issued any securities (other than as
permitted or contemplated by this Agreement); (ii) borrowed any
amount or incurred or became subject to any liabilities (absolute
or contingent) which involve $50,000 or more, other than
liabilities incurred in the ordinary course of business and
liabilities under contracts entered into in the ordinary course
of business; (iii) discharged or satisfied any lien, adverse
claim or encumbrance or paid any obligation or liability
(absolute or contingent), other than current liabilities paid in
the ordinary course of business; (iv) declared or made any
payment or distribution of cash or other property to the
stockholders of the Company with respect to the Common Stock or
purchased or redeemed any shares of Common Stock; (v) mortgaged,
pledged or subjected to any lien, adverse claim, charge or any
other encumbrance, any of its properties or assets, except for
liens for taxes not yet due and payable; (vi) sold, assigned or
transferred any of its assets, tangible or intangible, except in
the ordinary course of business and in an amount less than
$50,000, or disclosed to any person, firm or entity not subject
to a confidentiality obligation with the Company any proprietary
confidential information; (vii) suffered any extraordinary losses
or waived any rights of material value; (viii) made any change in
the nature or operations of the business of the Company; or (ix)
resolved or entered into any agreement or understanding with
respect to any of the foregoing.
(i) Properties. The Company has good and marketable title to all of
the real property and good title to all of the personal property
and assets it purports to own as set forth in the Financial
Statements, whether such property is real or personal, free and
clear of all liens, adverse claims, charges, encumbrances or
restrictions of any nature whatsoever, except (a) such as are
reflected on Schedule 8(i), (b) for receivables and charges
collected in the ordinary course of business and (c) immaterial
exceptions of a routine and customary nature. The Company owns or
leases all such properties as are necessary to its operations as
now conducted and as presently proposed to be conducted and all
such properties are, in all material respects, in good operating
condition and repair.
-6-
(j) Taxes. Except as set forth on Schedule 8(j), the Company has
timely filed all federal, state, local and foreign tax returns
and reports required to be filed, and all taxes, fees,
assessments and governmental charges of any nature shown by such
returns and reports to be due and payable have been timely paid
except for those amounts being contested in good faith and for
which appropriate amounts have been reserved in accordance with
generally accepted accounting principles. There is no tax
deficiency that has been, or, to the best knowledge of the
Company after due inquiry might be, asserted against the Company
that would adversely affect the business or operations, or
proposed business or operations, of the Company. All such tax
returns and reports were prepared in accordance with the relevant
rules and regulations of each taxing authority having
jurisdiction over the Company and are true and correct. The
Company has neither given nor been requested to give any waiver
of any statute of limitations relating to the payment of federal,
state, local or foreign taxes. The Company has not been, nor is
it now being, audited by any federal, state, local or foreign tax
authorities. The Company has made all required deposits for taxes
applicable to the current tax year. The Company is not, and has
never been, a member of any Affiliated group within the meaning
of Section 1504 of the Internal Revenue Code, as in effect from
time to time.
(k) Litigation. Except as set forth on Schedule 8(k), there are no
actions, suits, proceedings, orders, investigations or claims
pending or, to the best knowledge of the Company after due
inquiry, threatened against or affecting the Company, at law or
in equity or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality; there are no arbitration proceedings pending
under collective bargaining agreements or otherwise; and, to the
best knowledge of the Company after due inquiry, there is no
basis for any of the foregoing.
(l) Compliance with Law. The Company has complied in all material
respects with all applicable statutes and regulations of the
United States and of all states, municipalities and applicable
agencies and foreign jurisdictions or bodies in respect of the
conduct of its business and operations.
(m) Trademarks and Patents. Each trademark, trade name, patent and
copyright (and application therefor) owned by the Company is not
subject to any license, royalty arrangement, option or dispute
and is free and clear of all liens. To the best knowledge of the
Company after due inquiry, none of the trademarks, trade names,
patents or copyrights used by the Company in connection with its
business infringes any trademark, trade name, patent or copyright
of others in the United States or in any other country, in any
way which adversely affects or which in the future may adversely
affect the business or operations of the Company. No stockholder,
officer or director of the Company or any other person owns or
has any interest in any trademark, trade name, service xxxx,
patent, copyright or application therefor, or trade secret,
licenses, invention, information or proprietary right or process,
-7-
if any, used by the Company in connection with its business. The
Company has no notice or knowledge of any objection or claim
being asserted by any person with respect to the ownership,
validity enforceability or use of any such trademarks, trade
names, patents and copyrights (and applications therefor) or
challenging or questioning the validity or effectiveness of any
license relating thereto. There are no unresolved conflicts with,
or pending claims of, any other person, whether in litigation or
otherwise, involving the trademarks, trade names, patents and
copyrights (and applications therefor), and there are no liens,
encumbrances, adverse claims, or rights of any other person which
would prevent the Company from fulfilling its obligations under
this Agreement. To the best knowledge of the Company after due
inquiry, the business of the Company, as presently conducted and
as proposed to be conducted does not and will not cause the
Company to violate any trademark, trade name, patent, copyright,
trade secret, license or proprietary interest of any other person
or entity, in any way which adversely affects or which in the
future may adversely affect the business or operations of the
Company.
(n) Insurance. Each insurance policy maintained by the Company with
respect to its properties, assets and business is in full force
and effect; and the Company is not in default with respect to its
obligations under any of such insurance policies. Such insurance
coverage is in amounts not less than is customarily maintained by
corporations engaged in the same or similar business and
similarly situated, including, without limitation, insurance
against loss, damage, fire, theft, public liability and other
risks. The activities and operations of the Company have been
conducted in a manner so as to conform to all applicable
provisions of these insurance policies and the Company has not
taken or failed to take any action which would cause any such
insurance policy to lapse.
(o) Agreements. Except as set forth on Schedule 8(o), the Company is
not party to nor bound by any agreement or commitment, written or
oral, which obligates the Company to make payments to any person,
or which obligates any person to make payments to the Company, in
the case of each such agreement in an amount exceeding $50,000,
or which is otherwise material to the conduct and operation of
the business or proposed business of the Company or any of its
properties or assets, including, without limitation, all
shareholder, employment, non-competition and consulting
agreements and employee benefit plans and arrangements and
collective bargaining agreements to which the Company is a party
or by which it is bound. All such agreements are legal, valid and
binding obligations of the Company, in full force and effect, and
enforceable in accordance with their respective terms, except as
the enforceability thereof may be limited by (a) bankruptcy,
insolvency, moratorium, and similar laws affecting creditors
rights generally and (b) the availability of remedies under
general equitable principles. The Company has performed all
obligations required to be performed by it, and is not in
default, or in receipt of any claim, under any such agreement or
commitment, and the Company has no present expectation or
intention of not fully performing all of such obligations, nor
does the Company have any knowledge of any breach or anticipated
breach by the other parties to any such agreement or commitment.
The Company is not party to any contract, agreement, instrument
or understanding which materially adversely affects the business,
properties, prospects, operations, assets or condition (financial
or otherwise) of the Company.
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(p) Undisclosed Liabilities. Except as set forth on Schedule 8(p),
the Company has no obligation or liability (whether accrued,
absolute, contingent, unliquidated, or otherwise, whether due or
to become due, except that, as to contingent liabilities, such
reference is only as to matters which are reasonably possible of
assertion and, which if asserted, could reasonably result in
material liability) of which the Company knows or has reason to
know exists arising out of transactions entered into at or
included on the September 30, 1999 balance sheet included in the
Financial Statements prior to the Closing Date, or any action or
inaction at or prior to the Closing Date, or any state of facts
existing at or prior to the Closing Date, except (i) liabilities
in an amount less than $50,000 incurred in the ordinary course of
business (none of which is a liability for breach of contract,
breach of warranty, torts, infringements, claims or lawsuits); or
(ii) liabilities or obligations disclosed in the schedules to
this Agreement.
(q) Employees; Conflicting Agreements. (i) The Company has caused all
present members of management and all professional employees of
and consultants and advisors to the Company, including all
employees and consultants and advisors involved in research and
development, and will cause all such persons in the future, to be
subject to agreements with respect to (a) nondisclosure of
confidential information, (b) assignment of patents, trademarks,
copyrights and proprietary rights to the Company and (c)
disclosure to the Company of inventions in form and substance
satisfactory to the Purchasers. (ii) To the best knowledge of the
Company after due inquiry, no stockholder, director, officer or
key employee of the Company is a party to or bound by any
agreement, contract or commitment, or subject to any restrictions
in connection with any previous or current employment of any such
person (other than agreements with respect to the Company), which
adversely affects, or which in the future may adversely affect,
the business or the proposed business of the Company or the
rights of any of the Purchasers under this Agreement, including,
without limitation, in respect of Purchasers rights as a holder
of the Common Shares and the shares of Common Stock issuable in
connection therewith.
(r) Compliance with Securities Laws. (i) Assuming the accuracy and
truth of each of Purchasers representations set forth in Section
2, all securities of the Company heretofore sold and issued were
sold and issued, and the Common Shares were offered and will be
sold and issued, in compliance with all applicable federal, state
and foreign securities laws. Neither the Company, nor any of its
Affiliates, nor, to its best knowledge after due inquiry, any
person or entity acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under circumstances that would
require registration of the Common Shares under the Securities
Act of 1933, as amended (the "Securities Act") or for the
offering of the same to be integrated with any other offering of
securities; (ii) The Company has not directly or indirectly
purchased or redeemed any shares of Common Stock during the 30
days preceding the Closing Date.
(s) Environmental Matters.
(i) The Company, and all properties owned, operated or leased by
the Company, have obtained and currently maintain all
environmental permits required for their business and
operations and are in compliance with all such environmental
permits. There are no legal proceedings pending nor, to the
best knowledge of the Company after due inquiry, threatened
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to modify or revoke any such environmental permits. Neither
the Company, nor any property owned, operated or leased by
the Company, has received any notice from any source that
there is lacking any environmental permit required for the
current use or operation of the business of the Company, or
any property owned, operated or leased by the Company.
(ii) All real property owned, operated or leased by the Company,
and, to the best knowledge of the Company after due inquiry,
all property adjacent to such properties, are free from
contamination by any hazardous material; and the Company is
not subject to environmental costs and liabilities with
respect to hazardous materials, and no facts or
circumstances exist which could give rise to environmental
costs and liabilities with respect to hazardous materials.
(iii)There is not now, nor has there been in the past, on, in, or
under any real property owned, leased, or operated by the
Company, or by any of their respective predecessors (a) any
asbestos-containing materials, (b) any underground storage
tanks, (c) above-ground storage tanks, (d) impoundments, (e)
poly-chlorinated biphenyls or (f) radioactive substances
(iv) The Company, and all properties owned, operated or leased by
the Company, comply with all environmental laws
(v) Neither the Company, nor any property owned, leased or
operated by the Company, has received or been issued any
written request for information, or has been notified that
it is a potentially responsible party under the
environmental laws with respect to any on-site or off-site
for which environmental costs and liabilities are asserted.
t. No Brokers. Except for the Placement Agreement, no finder,
broker, agent or other intermediary has acted on behalf of the
Company in connection with the offering of the Shares, the
execution of this Agreement or the consummation of any of the
transactions contemplated by this Agreement.
u. Transactions with Affiliates. Except as previously disclosed in
the Company's SEC filings and in the Company's Proxy Statement,
no director, officer, employee, consultant or agent of the
Company, or member of the family of any such person or any
corporation, partnership, trust or other entity in which any such
person, or any member of the family of any such person, has a
substantial interest in or is an officer, director, trustee,
partner or holder of more than 5% of the outstanding capital
stock thereof, is a party to any transaction with the Company,
including any contract, agreement or other arrangement providing
for the employment of, furnishing of services by or requiring
payments to any such person or firm.
v. Financial Statements. The financial statements of the Company and
the related notes contained in the documents that the Company was
required to file under the Securities and Exchange Act of 1934,
as amended, during the 12 months preceding the date of this
Agreement ("Exchange Act Documents") present fairly, in
accordance with generally accepted accounting principles, the
financial position of the Company as of the dates indicated, and
the results of its operations and cash flows for the periods
therein specified. Such financial statements (including the
related notes) have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
throughout the periods therein specified, except as may be
disclosed in the SEC Documents.
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w. Accountants. The auditing firm which the Company expects will
express their opinion with respect to the financial statements to
be incorporated by reference from the Company's Annual Report on
Form 10-K for the year ended December 31, 1999 into the
Registration Statement (as defined below) and the Prospectus
which forms a part thereof, are and shall be independent
accountants as required by the Securities Act and the rules and
regulations promulgated thereunder (the "Rules and Regulations").
x. Transfer Taxes. On the Closing Date, all stock transfer or other
taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Shares to be sold to
the Purchaser hereunder will be, or will have been, fully paid or
provided for by the Company and all laws imposing such taxes will
be or will have been fully complied with.
y. Investment Company. The Company is not an "investment company" or
an "affiliated person" of, or "promoter" or "principal
underwriter" for an investment company, within the meaning of the
Investment Company Act of 1940, as amended.
z. Offering Materials. Other than the SEC Documents and the Private
Placement Memorandum dated the date hereof (the "Offering
Materials"), the Company has not distributed and will not
distribute prior to the Closing Date any offering material in
connection with the offering and sale of the Shares. The Company
has not in the past nor will it hereafter take any action
independent of the Placement Agent to sell, offer for sale or
solicit offers to buy any securities of the Company which would
bring the offer, issuance or sale of the Shares, as contemplated
by this Agreement, within the provisions of Section 5 of the
Securities Act, unless such offer, issuance or sale was or shall
be within the exemptions of Section 4 of the Securities Act.
9. Covenants of the Company.
------------------------
The Company covenants and agrees with the Purchasers as follows:
(a) Restrictive Legend. (1) The Purchasers acknowledge and agree that
until such time as the shares have been registered for resale
under the 1933 Act as contemplated by Section 10 below, the
certificates for the Shares will bear a restrictive legend as
described in Section 4(d) of this Agreement. (2) Once the Shelf
Registration Statement provided in Section 10 has been declared
effective, thereafter (i) upon request of a Purchaser the Company
will promptly (but in no event later than three Trading Days
after receipt of such Purchaser's legended certificates by the
Company) substitute certificates without restrictive legend for
certificates for any Shares issued prior to the dates such Shelf
Registration Statement is declared effective by the SEC which
bear such restrictive legend and remove any stop-transfer
restriction relating thereto and (ii) the Company shall not place
any restrictive legend on certificates for any Shares issued or
impose any stop-transfer restriction thereon.
-11-
(b) Form D. The Company agrees to file a Form D with respect to the
Shares as required under Regulation D and to provide a copy
thereof to Purchaser promptly after such filing. Each Purchaser
agrees to cooperate with the Company in connection with such
filing and, upon request of the Company, to provide all
information relating to such Purchaser reasonably required for
such filing.
(c) Use of Proceeds. The proceeds of sale of the Shares will be used
for continuing research and development for its existing product
line future clinical trials and for general working capital
purposes and in the operation of the Company's business.
10. Registration of Shares.
----------------------
(a) Not later than 10 business days after the Closing Date, the
Company will file with the SEC a shelf registration statement
(the "Shelf Registration Statement") with respect to the resale
of the Common Shares beneficially owned by Purchasers following
the Closing (the "Registrable Securities"). The Company will use
its best efforts to, within 120 days after the date of such
filing, effect the registrations, qualifications or compliance
(including, without limitation, the execution of any required
undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state
securities laws and appropriate compliance with applicable
securities laws, requirements or regulations) as may be
reasonably requested and as would permit or facilitate the sale
and distribution of all Registrable Securities until the
distribution is complete; provided that the Company shall not be
obligated to maintain the effectiveness of the Shelf Registration
Statement (and any related qualifications and compliance)
following such time as the Company shall deliver an opinion of
counsel reasonably satisfactory to the holders of Registrable
Securities (such holders are referred to as the "Holders') and in
form and substance satisfactory to each Holder that (i) such
Holders may sell in a single transaction all Registrable
Securities then held or issuable to such Holder on a registered
securities exchange or NASDAQ market under an applicable
exemption from the registration requirements of the Securities
Act and all other applicable securities laws and (ii) all
transfer restrictions and restrictive legends with respect to
such Registrable Securities will be removed upon the consummation
of such sale.
(b) Registration Procedures. In connection with the registration of
any Registrable Securities under the Securities Act as provided
in this Section 10, the Company will use its best efforts, as
expeditiously as possible:
(i) To prepare and file with the SEC the Shelf Registration
Statement with respect to such Registrable Securities and
use its best efforts to cause such Shelf Registration
Statement to become effective as expeditiously as possible;
(ii) To prepare and file with the SEC such amendments and
supplements to such Shelf Registration Statement and the
prospectus used in connection therewith as may be necessary
to keep such Shelf Registration Statement effective until
the disposition of all securities in accordance with the
intended methods of disposition by the seller or sellers set
forth in such Shelf Registration Statement shall be
completed, and to comply with the provisions of the
Securities Act (to the extent applicable to the Company)
with respect to such dispositions;
-12-
(iii)To furnish to each seller of such Registrable Securities
such number of copies of such Shelf Registration Statement
and of each such amendment and supplement (in each case
including all exhibits), such number of copies of the
prospectus included in such Shelf Registration Statement
(including each preliminary prospectus), in conformity with
the requirements of the Securities Act, and such other
documents, as such seller may reasonably request, in order
to facilitate the disposition of the Registrable Securities
owned by such seller;
(iv) To use its best efforts to register or qualify such
Registrable Securities covered by such Shelf Registration
Statement under such other securities or blue sky laws of
such jurisdictions as any seller reasonably requests, and do
any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate
the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company
will not for any such purpose be required to qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not, but for the requirements
of this Section 10 be obligated to be qualified, to subject
itself to taxation in any such jurisdiction, or to consent
to general service of process in any such jurisdiction;
(v) To provide a transfer agent and registrar for all such
Registrable Securities covered by such Shelf Registration
Statement not later than the effective date of such Shelf
Registration Statement;
(vi) To notify each seller of such Registrable Securities at any
time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such
Shelf Registration Statement contains an untrue statement of
a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of
any such seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make
the statements therein not misleading. The Purchasers agree
to suspend, upon request of the Company, any disposition of
Registrable Securities pursuant to the Registration
Statement contemplated hereby during any period, not to
exceed one 30-day period per circumstance or development.
(vii) To use its best efforts to cause all such Registrable
Securities to be listed on each securities exchange or
automated over-the-counter trading system on which similar
securities issued by the Company are then listed;
(viii) To enter into such customary agreements (including, in the
event Purchasers elect to engage an underwriter in
connection with the Shelf Registration Statement, an
underwriting agreement containing customary terms and
-13-
conditions) and take all such other actions as reasonably
required in order to expedite or facilitate the disposition
of such Registrable Securities; and
(ix) To make available for inspection by any seller of
Registrable Securities, all financial and other records,
pertinent corporation documents and properties of the
Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by
any such seller in connection with the Shelf Registration
Statement.
(x) With a view to making available to the Purchaser the
benefits of Rule 144 (or its successor rule) and any other
rule or regulation of the SEC that may at any time permit
the Investor to sell Shares to the public without
registration, the Company covenants and agrees to: (i) make
and keep public information available, as those terms are
understood and defined in Rule 144; (ii) file with the SEC
in a timely manner all reports and other documents required
of the Company under the Securities Act and under the
Exchange Act; and (iii) furnish to the Purchaser upon
request, as long as the Purchaser owns at least 25,000
Shares, (A) a written statement by the Company that it has
complied with the reporting requirements of the Securities
Act and the Exchange Act, (B) a copy of the Company's most
recent Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, and (C) such other information as may be
reasonably requested in order to avail the Purchaser of any
rule or regulation of the SEC that permits the selling of
any such Shares without registration.
(c) Registration and Selling Expenses. All expenses incurred by the
Company in connection with the Company's performance of or
compliance with this Section 10, including, without limitation
(i) all registration and filing fees (including all expenses
incident to filing with the National Association of Securities
Dealers, Inc.), (ii) blue sky fees and expenses, (iii) all
necessary printing and duplicating expenses, and (iv) all fees
and disbursements of counsel and accountants retained by the
Company (including the expenses of any audit of financial
statements) (all such expenses being called "Registration
Expenses"), will be paid by the Company.
(d) The Company will, in any event, in connection with any
registration statement, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and
employees performing legal, accounting or other duties in
connection therewith and expenses of audits of year-end financial
statements), the expense of liability insurance and the expenses
and fees for listing the securities to be registered on one or
more securities exchanges or automated over-the-counter trading
systems on which similar securities issued by the Company are
then listed.
(e) Nothing in this Agreement shall be construed to prevent any
Holder or Holders of Registrable Securities from retaining such
counsel as they shall choose at their own expense.
11. Indemnification.
---------------
(a) The Company shall indemnify, to the extent permitted by law, each
Holder of Registrable Securities, its officers, trustees and
directors, if any, and each person, if any, who controls such
Holder within the meaning of the Securities Act, against all
losses, claims, damages, liabilities and expenses (under the
Securities Act or common law or otherwise) caused by any untrue
statement or alleged untrue statement of a material fact
-14-
contained in any registration statement or prospectus (and as
amended or supplemented if the Company has furnished any
amendments or supplements) or any preliminary prospectus, which
registration statement, prospectus or preliminary prospectus
shall be prepared in connection with the contemplated
registration, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses
are caused by any untrue statement or alleged untrue statement
contained in or by any omission or alleged omission from
information furnished in writing by such holder to the Company in
connection with the contemplated registration provided the
Company will not be liable pursuant to this Section 10 if such
losses, claims, damages, liabilities or expenses have been caused
by any selling security holder's failure to deliver a copy of the
registration statement or prospectus, or any amendments or
supplements.
(b) In connection with any registration statement in which a Holder
is participating, each such Holder shall furnish to the Company
in writing such information as is reasonably requested by the
Company for use in any such registration statement or prospectus
and shall severally, but not jointly, indemnify, to the extent
permitted by law, the Company, its directors and officers and
each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages,
liabilities and expenses resulting from any untrue statement or
alleged untrue statement of a material fact or any omission or
alleged omission of a material fact required to be stated in the
registration statement or prospectus or any amendment or
supplement or necessary to make the statements therein not
misleading, but only to the extent such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or
alleged untrue statement contained in or by an omission or
alleged omission from information so furnished in writing by such
Holder in connection with the contemplated registration. If the
offering pursuant to any such registration is made through
underwriters, each such Holder agrees to enter into an
underwriting agreement in customary form with such underwriters
and to indemnify such underwriters, their officers and directors,
if any, and each person who controls such underwriters within the
meaning of the Securities Act to the same extent as provided with
respect to indemnification by such Holder of the Company.
Notwithstanding the foregoing or any other provision of this
Agreement, in no event shall a Holder be liable for any losses,
claims, damages, liabilities or expenses in excess of the net
proceeds received by such Holder in the offering.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding, such indemnified party
will, if a claim is made against the indemnifying party under
such Section, notify the indemnifying party in writing of the
commencement; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to
any indemnified party otherwise than under such Section. In case
any such action or proceeding is brought against any indemnified
party, and it notifies the indemnifying party of the
commencement, the indemnifying party will be entitled to
participate, and, to the extent that it wishes, jointly with any
other indemnifying party similarly notified, to assume the
defense, with counsel approved by such indemnified party, and
after notice from the indemnifying party to such indemnified
party of its election so to assume the defense, the indemnifying
party will not be liable to such indemnified party under such
Section for any legal or any other expenses subsequently incurred
-15-
by such indemnified party in connection with the defense (other
than reasonable costs of investigation) unless incurred at the
written request of the indemnifying party. Notwithstanding the
above, the indemnified party will have the right to employ
counsel of its own choice in any such action or proceeding if the
indemnified party has reasonably concluded that there may be
defenses available to it which are different from or additional
to those of the indemnifying party, or counsel to the indemnified
party is of the opinion that it would not be desirable for the
same counsel to represent both the indemnifying party and the
indemnified party because such representation might result in a
conflict of interest (in either of which cases the indemnifying
party will not have the right to assume the defense of any such
action or proceeding on behalf of the indemnified party or
parties and such legal and other expenses will be borne by the
indemnifying party). An indemnifying party will not be liable to
any indemnified party for any settlement of any such action or
proceeding effected without the consent of such indemnifying
party.
(d) If the indemnification provided for in this Section 11 is
unavailable under applicable law to an indemnified party in
respect of any losses, claims, damages or liabilities referred to
therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the Company on
the one hand and of the Holders on the other in connection with
the statements or omissions which resulted in such losses,
claims, damages, or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company on
the one hand and of the Holders on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the
Company or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include, subject
to the limitations set forth in this Section 11, any legal or
other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
Notwithstanding the foregoing or any other provision of this
Agreement, in no event shall a Holder be required to contribute
any amount in excess of the net proceeds received by such Holder
in the offering less any amount paid by such Holder pursuant to
any other provision of this Section 11. 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 is not guilty of such fraudulent misrepresentation.
(e) Promptly after receipt by the Company or any Holder of notice of
the commencement of any action or proceeding, such party will, if
a claim for contribution is to be made against another party (the
"contributing party"), notify the contributing party of the
-16-
commencement; but the omission so to notify the contributing
party will not relieve it from any liability which it may have to
any other party other than for contribution under this Agreement.
In case any such action, suit, or proceeding is brought against
any party, and such party notifies a contributing party of the
commencement, the contributing party will be entitled to
participate with the notifying party and any other contributing
party similarly notified.
12. Company Indemnities.
-------------------
The Company agrees to indemnify, defend and hold Purchasers and their
officers, trustees, directors, partners, employees, consultants and
agents (the "Purchasers' Indemnitees") harmless from and against any
damages or third-party claims incurred or suffered by any of
Purchasers' Indemnitees as a result of or arising out of or in
connection with the Company's breach of any representation, warranty,
covenant or agreement of the Company contained in this Agreement and
such indemnity shall survive the execution and delivery of this
Agreement. The applicable Purchasers' Indemnities will promptly notify
the Company of any potential indemnification claim upon discovery of
the facts supporting the potential claim and, if such indemnification
is based on a third-party claim, allow the Company to defend, manage
and resolve the matter at the Company's cost and with the indemnities'
reasonable cooperation.
13. Amendments and Waivers.
----------------------
This Agreement and it's exhibits and schedules set forth the entire
agreement and understanding among the parties as to the subject matter
and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them. This Agreement may
be amended only by mutual written agreement of the Company and the
Purchasers, and the Company may omit to take any action required to be
performed by it, and any breach of any covenant, agreement, warranty or
representation may be waived, only if the Company has obtained the
written consent or waiver of a majority in interest of the Purchasers.
No course of dealing between or among any persons having any interest
in this Agreement will be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations of
any person under or by reason of this Agreement.
14. Successors and Assigns.
----------------------
This Agreement shall be binding upon and inure to the benefit of the
Company and it's permitted successors and assigns and Purchasers and
their successors and assigns. The provisions which are for Purchasers'
benefit as purchasers or holders of the Common Shares are also for the
benefit of, and enforceable by, any subsequent holder of such Common
Shares.
15. Notices.
-------
All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given personally or when
mailed by certified or registered mail, return receipt requested and
postage prepaid, and addressed to the addresses of the respective
parties set forth below or to such changed addresses as such parties
-17-
may have fixed by notice; provided, however, that any notice of change
of address shall be effective only upon receipt:
If to the Company:
Immunomedics, Inc.
000 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxxxx
With a Copy to:
Starr, Gern, Xxxxxxx & Xxxxx, 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, XX
00000
If to the Purchasers:
At the addresses shown on Exhibit A with a copy to Sutro & Co., Inc.
16. Governing Law; Consent to Jurisdiction.
--------------------------------------
The validity, performance, construction and effect of this Agreement
shall be governed by those laws of the State of New Jersey. The parties
irrevocably consent to the jurisdiction of the courts of the State of
New Jersey and of any federal court located in such State 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.
17. Counterparts.
------------
This Agreement may be executed in any number of counterparts and,
notwithstanding that any of the parties did not execute the same
counterpart, each of such counterparts shall, for all purposes, be
deemed an original, and all such counterparts shall constitute one and
the same instrument binding on all of the parties.
18. Headings.
--------
The headings of the Sections are inserted as a matter of convenience
and for reference only and in no way define, limit or describe the
scope of this Agreement or the meaning of any provision.
19. Severability.
------------
In the event that any provision of this Agreement or the application of
any provision is declared to be illegal, invalid or otherwise
unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to
delete such illegal, invalid or unenforceable provision unless the
provision held invalid shall substantially impair the benefit of the
remaining portion of this Agreement.
20. Governing Law.
-------------
This Agreement shall be governed by and interpreted in accordance with
the laws of the State of New Jersey.
-18-
21. Exculpation Among Purchasers.
----------------------------
Each Purchaser acknowledges and agrees that it is not relying upon any
other Purchaser, or any officer, director, employee partner or
affiliate of any such other Purchaser, in making its investment or
decision to invest in the Company or in monitoring such investment.
Each Purchaser agrees that no Purchaser nor any controlling person,
officer, director, stockholder, partner, agent or employee of any
Purchaser shall be liable for any action heretofore or hereafter taken
or omitted to be taken by any of them relating to or in connection with
the Company or the Shares, or both.
22. Actions by Purchasers.
---------------------
Any actions permitted to be taken by holders or Purchasers of Shares
and any consents required to be obtained from the same under this
Agreement, may be taken or given only by, in the case of consents or
actions requiring approval of a Purchaser, by the applicable Purchaser,
and in all other cases, except to the extent inconsistent with any
explicit provision of this Agreement, only by holders of a majority in
interest of the Common Stock.
23. Publicity.
---------
The Company will not issue any public statement, press release or any
other public disclosure listing Purchaser as one of the purchasers of
the Shares without Purchaser's prior written consent.
[Signature Page Follows]
-19-
IN WITNESS WHEREOF, this Agreement was duly executed
on the 14th day of February, 2000.
IMMUNOMEDICS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxxxx, M.D.,
Chairman
-20-
Purchasers
The following is a list of the purchasers whose signatures are on the file.
DCF Capital L.P. 75,000
DCF Life Sciences Fund LTD 25,000
Dresdner RCM Global Investor 200,000
Franklin Xxxxxxxxx Group 300,000
Global Lifesciences Fund 749,375
Aspen Global Life Sciences Fund 625
JMG Capital 75,000
Xxxxx Global Investments, Ltd. 160,000
Remington Investment Strategies, L.P. 40,000
Palantir Capital 100,000
Beacon Funds 75,000
1st New York Securities 75,000
Westcliff Master Fund L.P. 40,530
Westcliff Partners L.P. 33,470
Westcliff Partners SA L.P. 8,300
Westcliff Long/Short L.P. 9,940
Westcliff Small Cap Fund L.P. 7,760
Xxxxxx Lupin, M.D. 17,000
F/B/O Xxxxxx X. Lupin XXX 25,000
Lupin Foundation 15,000
Xxxxxx Partners 10,000
Xxxxxx X. Xxxxxx, M.D. 10,000
E. Ralph Lupin, M.D. 3,000
Fagey Lupin Xxxxxxxx 10,000
Xxxxxx - Xxxxxxxxxx Group 5,000
Xxxxxx - Xxxxxxxxxx Group 5,000
Xxxxxx Xxxxxxx, M.D. 104,000
Xxxxxx X. Xxxxxxx, M.D. 20,000
Xxxx Pasmentier, M.D. 6,000
Xxxx Xxxxxxxxx 20,000
Aires Domestic Fund, L.P. 30,482
Aires Domestic Fund II, L.P. 5,139
The Aires Master Fund 64,379
