EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Registration Rights
Agreement"), entered into as of December 23, 1997, between
Cripple Creek Securities, L.L.C., with offices at 00 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the "Investor"), and
Immunomedics, Inc., a Delaware corporation with offices at 000
Xxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to a Structured Equity Line Flexible
Financing(SM) Agreement, dated as of December 23, 1997 (the
"Investor Agreement"), by and between the Company and the
Investor, the Company has agreed to sell and the Investor has
agreed to purchase, from time to time as provided in the Investor
Agreement, shares of the Company's Common Stock, $0.01 par value
(the "Shares" or the "Common Stock") for a maximum aggregate
price of $30,000,000;
WHEREAS, pursuant to the terms of, and in partial
consideration for, the Investor's agreement to enter into the
Investor Agreement, the Company has issued to the Investor a
warrant dated December 23, 1997, exercisable from time to time
within four (4) years from the date of issuance (the "Warrant")
for the purchase of an aggregate of 50,000 Shares at a price
specified in such Warrant;
WHEREAS, the Company has agreed to issue from time to time
to the Investor additional four (4) year warrants to purchase up
to 125,000 Shares at prices determined pursuant to the Investor
Agreement ("Additional Warrants") upon the occurrence, if any, of
certain circumstances set forth in the Investor Agreement;
WHEREAS, pursuant to the terms of, and in partial
consideration for, the Investor's commitment to enter into the
Investor Agreement, the Company has agreed to provide the
Investor with certain registration rights with respect to the
Shares as set forth in this Registration Rights Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth
in the Investor Agreement and this Registration Rights Agreement
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, intended to be
legally bound hereby, the Company and the Investor agree as
follows:
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1. Certain Definitions. Capitalized terms used in this
Registration Rights Agreement and not otherwise defined herein
shall have the same meaning ascribed to them in the Investor
Agreement. The following terms shall have the following
respective meanings:
"Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time
administering the Securities Act.
"Investor" shall include the Investor and any permitted
assignee or transferee of the rights under the Investor
Agreement to whom the registration rights conferred by this
Registration Rights Agreement have been transferred in
compliance with Section 10 of this Registration Rights
Agreement.
The terms "register", "registered" and "registration" shall
refer to a registration effected by preparing and filing a
registration statement on Form S-3 compliance with the
Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean, subject to Section 11.2
of the Agreement, all expenses to be incurred by the Company
in connection with Investor's exercise of its registration
rights under this Registration Rights Agreement, including,
without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, reasonable fees and
disbursements of counsel to Investor for a "due diligence"
examination of the Company and review of the Warrant
Registration Statement and each Additional Warrant
Registration Statement, as applicable, and the expense of
any special audits incident to or required employees of the
Company, which shall be paid in any event by the Company).
"Registrable Securities" shall mean any Shares or other
securities issued or issuable to the Investor or any holder
or transferee upon the exercise of the Warrant or the
Additional Warrants as provided therein, until (i) a
registration statement under the Securities Act covering the
offering of such Shares has been declared effective by the
Commission and such Shares have been disposed of pursuant to
such effective registration statement, (ii) such Shares are
sold under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provision then in
force) under the Securities Act ("Rule 144") are met, (iii)
such Shares have been otherwise transferred and the Company
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has delivered a new certificate or other evidence of
ownership for such securities not bearing a restrictive
legend, or (iv) such time as, in the opinion of counsel to
the Company, which counsel shall be acceptable to the
Investor in its sole discretion, all such Shares may be sold
without any time, volume or manner limitation pursuant to
Rule 144(k) (or any similar provision then in effect) under
the Securities Act.
2. Registration Requirements. The Company shall use its
reasonable best efforts to effect the registration of the
Registrable Securities contemplated by the Warrant, and if
applicable, the Additional Warrants (including, without
limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under
the Securities Act) as would permit or facilitate the sale or
distribution of all the Registrable Securities in the manner
(including manner of sale) and in all states reasonably requested
by the Warrant Holder for purposes of maximizing the proceeds
realizable by the Investor from such sale or distribution. Such
reasonable best efforts by the Company shall include without
limitation the following:
(a) Subject to the terms and conditions of this
Registration Rights Agreement, the Company shall file with the
Commission (i) no later than thirty (30) days from the date of
execution of the Investor Agreement, a registration statement on
Form S-3 under the Securities Act for the registration of the
resale by the Investor of the Registrable Securities to be issued
upon exercise of the Warrant (the "Warrant Registration
Statement") which Warrant Registration Statement shall have been
declared effective by the Commission no later than ninety (90)
days from the filing of this Registration Rights Agreement, and
(ii) no later than thirty (30) days from the date of the issuance
of each Additional Warrant, a registration of the resale by the
Investor of the Registrable Securities to be issued upon exercise
of each Additional Warrant (each, an "Additional Warrant
Registration Statement") which such Additional Warrant
Registration Statement shall have been declared effective by the
Commission within ninety (90) days of the date of issuance of
each such Additional Warrant. The Warrant Registration Statement
and each Additional Warrant Registration Statement are each
referred to herein as a "Registration Statement." Furthermore,
at the time of each Registration Statement filing, the Company
shall file (A) such blue sky filings as shall have been requested
by the Investor; and (B) any required filings with the National
Association of Securities Dealers, Inc. or exchange or market
where the Shares are traded. The Company shall use its best
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efforts to have all filings declared effective as promptly as
practicable.
(b) (i) If the Company (A) fails to file the Warrant
Registration Statement complying with the requirements of this
Registration Rights Agreement within thirty (30) days from the
date of the execution of the Investor Agreement or if the
Registration Statement has not become effective on or before
ninety (90) days from the filing of the Registration Statement,
or (B) fails to file an Additional Warrant Registration Statement
complying with the requirements of this Registration Rights
Agreement within thirty (30) days of the issuance of an
Additional Warrant or if such Additional Warrant Registration
Statement has not become effective within ninety (90) days of the
filing of such Additional Warrant Registration Statement, the
Investor shall have, in addition to and without limiting any
other rights it may have at law, in equity or under the Investor
Agreement, or this Registration Rights Agreement (including the
right to specific performance), the right to receive, as liqui-
dated damages, the payments as provided in subparagraph (ii) of
this section.
(ii) In the event the Company fails to obtain the
effectiveness of a Registration Statement within the time period
set forth in Section 2(a), the Company shall pay to the Investor
an amount equal to (A) $100, in cash, for each day of the thirty
(30) day period following the date by which such Registration
Statement was required to have been declared effective and (B)
$500, in cash, for each day after such first thirty (30) day
period. In addition to the foregoing, in the event the Company
fails to maintain the effectiveness of a Registration Statement
(or the use of the underlying prospectus) throughout the period
set forth in Section 5(a), other than suspensions as set forth in
Section 5A, the Company shall pay to the Investor an amount equal
to $500, in cash, per day, in which a suspension has occurred.
(c) The Company shall enter into such customary
agreements and take all such other reasonable actions in connec-
tion therewith in order to expedite or facilitate the disposition
of such Registrable Securities. The foregoing is not intended to
require the Company to pay dividends in order to use Form S-3.
3-4. [Intentionally Omitted]
5. Registration Procedures. In the case of each
registration effected by the Company pursuant to this
Registration Rights Agreement, the Company will keep the Investor
advised in writing as to the initiation of each registration and
as to the completion thereof. At its expense, the Company will
use its reasonable best efforts to:
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(a) Keep such registration effective for the period
ending forty-eight (48) months, as extended pursuant to Section
5A hereof, after the date of the initial registration of the
Warrant (in the case of the Warrant Registration Statement) and
forty-eight (48) months, as extended pursuant to Section 5A
hereof, after the date of issuance of each Additional Warrant (in
the case of an Additional Warrant Registration Statement), or
until the Investor has completed the distribution of the Shares
or securities issued or issuable by the Company upon exercise of
the Warrant and the Additional Warrants, whichever first occurs;
provided, however, that the Company's obligation under clause (a)
or clause (c) below shall only apply so long as Form S-3 (or
comparable form allowing incorporation by reference) is available
for transactions of this type.
(b) Furnish such number of prospectuses and amendments
and supplements thereto, and other documents incident thereto as
the Investor from time to time may reasonably request.
(c) Prepare and file with the Commission such
amendments and post-effective amendments to a Registration
Statement as may be necessary to keep such Registration Statement
effective for the applicable period; cause the related prospectus
to be supplemented by any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the
Securities Act; and comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement or supplement to such prospectus;
(d) Notify the Investor and its counsel (as designated
in writing by the Investor) promptly, and confirm such notice (a
"Notice") in writing, (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to a
Registration Statement or related prospectus or for additional
information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purposes, (iv) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) of the
happening of any event as a result of which the prospectus
included in the Registration Statement (as then in effect)
contains any untrue statement of a material fact or omits to
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state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading, and
(vi) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be ap-
propriate or that there exist circumstances not yet disclosed to
the public which make further sales under such Registration
Statement inadvisable pending such disclosure and post-effective
amendment;
(e) Upon the occurrence of any event contemplated by
Section 5(d)(ii)-(vii) and immediately upon the expiration of any
Blocking Period (as defined in Section 5A), prepare, if the
occurrence of such event or period requires such preparation, a
supplement or post-effective amendment to the Registration
Statement or related prospectus or any document incorporated
therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such prospectus will not
contain an untrue statement of a material fact or omit to state
any material fact necessary to make the statements, in light of
the circumstances under which they were made, not misleading;
(f) Obtain the withdrawal of any order suspending the
effectiveness of the Registration Statement, or the lifting of
any suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction, at the earliest possible
moment;
(g) Cause all Registrable Securities subject to
Registration Statement shall at all times be registered or
qualified for offer and sale under the securities or blue sky
laws of such jurisdictions as any Investor reasonably requests in
writing; use its best efforts to keep each such registration or
qualification effective, including through new filings or
amendments or renewals, during the period a Registration
Statement is required to be kept effective and do any and all
other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided,
however, that the Company will not be required to qualify to do
business or take any action that would subject it to taxation or
general service of process in any jurisdiction where it is not
then so qualified or subject;
(h) Cause the Registrable Securities covered by the
Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the
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disposition of such Registrable Securities in accordance with the
chosen method or methods of distribution; and
(i) Cause all Registrable Securities included in such
Registration Statement to be listed, by the date of first sale of
Registrable Securities pursuant to such Registration Statement,
on the principal securities exchange or automated interdealer
system on which the same type of securities of the Company are
then listed or traded.
5A. Suspensions of Effectiveness. The Company may
suspend dispositions under the Registration Statement and notify
the Investor that it may not sell the Registrable Securities
pursuant to any Registration Statement or prospectus (a "Blocking
Notice") if the Company's management determines in its good faith
judgment that the Company's obligation to ensure that such
Registration Statement and prospectus are current and complete
would require the Company to take actions that might reasonably
be expected to have a materially adverse detrimental effect on
the Company and its stockholders; provided that such suspension
pursuant to a Blocking Notice or the Notice described below or as
a result of the circumstances described in 5(d)(ii)-(vii) may not
exceed ninety (90) days (whether or not consecutive) in any
twelve (12) month period. The Investor agrees by acquisition of
the Registrable Securities that, upon receipt of a Blocking
Notice or "Notice" from the Company of the existence of any fact
of the kind described in the following sentence, the Investor
shall not dispose of, sell or offer for sale the Registrable
Securities pursuant to the Registration Statement until such
Investor receives (i) copies of the supplemented or amended
prospectus, or until counsel for the Company shall have
determined that such disclosure is not required due to subsequent
events, (ii) notice in writing (the "Advice") from the Company
that the use of the prospectus may be resumed and (iii) copies of
any additional or supplemental filings that are incorporated by
reference in the Prospectus. Pursuant to the immediately
preceding sentence, the Company may provide such Notice to the
Investor upon the determination by the Company of the existence
of any fact or the happening or any event that makes any
statement of a material fact made in the Registration Statement,
the prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue in any material
respect, or that requires the making of any additions to or
changes in the Registration Statement or the prospectus, in order
to make the statements therein not misleading in any material
respect. If so directed by the Company in connection with any
such notice, each Investor will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies
then in such Investor's possession, of the prospectus covering
such Registrable Securities that was current immediately prior to
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the time of receipt of such notice. In the event the Company
shall give any such Blocking Notice or Notice, the time regarding
the effectiveness of such Registration Statement set forth in
Section 5(a) shall be extended by one and one-half (1-1/2) times
the number of days during the period from and including the date
of the giving of such Blocking Notice or Notice to and including
the date when the Investor shall have received the copies of the
supplemented or amended prospectus, the Advice and any additional
or supplemental filings that are incorporated by reference in the
prospectus. Delivery of a Blocking Notice or Notice and the
related suspension of any Registration Statement shall not
constitute a default under this Registration Rights Agreement and
shall not create any obligation to pay liquidated damages under
Section 2 hereof. However, if the Investor's ability to sell
under the Registration Statement is suspended for more than the
ninety (90) days period described above, the Investor may elect,
in its sole and absolute discretion, to terminate the Investor
Agreement pursuant to Section 10.4 in the Investor Agreement.
6. Indemnification.
(a) Company Indemnity. The Company will indemnify
the Investor, each of its officers, directors and partners, and
each person controlling the Investor, within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act and the rules and regulations thereunder with respect to
which registration, qualification or compliance has been effected
pursuant to this Registration Rights Agreement, against all
claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
prospectus, offering circular or other document (including any
related registration statement, notification or the like or any
amendment thereto) incident to any such registration,
qualification or compliance, or based on 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, or any violation by the Company of the Securities Act
or any state securities law or in either case, any rule or
regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will
reimburse the Investor, each of its officers, directors and
partners, and each person controlling the Investor, each such
underwriter and each person who controls any such underwriter,
for any legal and any other expenses reasonably incurred in con-
nection with investigating and defending any such claim, loss,
damage, liability or action, provided that the Company will not
be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on
any untrue statement or omission (or alleged untrue statement or
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omission) that is made in reliance upon and in conformity with
written information furnished to the Company by Investor and
stated to be specifically for use therein. In addition to any
other information furnished in writing to the Company by the
Investor, the information in the Registration Statement concern-
ing the Investor under the captions "Selling Shareholders" (or
any similarly captioned section containing the information re-
quired pursuant to Item 507 of Regulation S-K promulgated pursu-
ant to the Securities Act) and "Plan of Distribution" (or any
similarly captioned section containing information required pur-
suant to Item 508 of Regulation S-K) shall be deemed information
furnished in writing to the Company by the Investor to the extent
it conforms to information actually supplied in writing by the
Investor. The indemnity agreement contained in this Section 6(a)
shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent will not be
unreasonably withheld).
(b) Investor Indemnity. The Investor will, if
Registrable Securities held by it are included in the securities
as to which such registration, qualification or compliance is
being effected, indemnify the Company, each of its directors,
officers, partners, and each underwriter, if any, of the
Company's securities covered by such a registration statement,
each person who controls the Company or such underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and the rules and regulations thereunder, each
other Investor (if any), and each of their officers, directors
and partners, and each person controlling such other Investor (if
any), and each of their officers, directors, and partners, and
each person controlling such other Investor against all claims,
losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such
registration statement (or any amendment thereto), prospectus,
offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated
therein or necessary to make the statement therein not
misleading, and will reimburse the Company and its directors,
officers and partners, or control persons for any legal or any
other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information
furnished to the Company by the Investor and stated to be
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specifically for use therein, and provided that no Investor shall
be liable under this indemnity for an amount in excess of the
proceeds received by the Investor from the sale of the
Registrable Securities pursuant to such Registration Statement.
In addition to any other information furnished in writing to the
Company by the Warrant Holder, the information in the
Registration Statement concerning the Investor under the captions
"Selling Shareholders" (or any similarly captioned section
containing the information required pursuant to Item 507 of
Regulation S-K promulgated pursuant to the Securities Act) and
"Plan of Distribution" (or any similarly captioned section
containing information required pursuant to Item 508 of
Regulation S-K) shall be deemed information furnished in writing
to the Company by the Investor to the extent it conforms to
information actually supplied in writing by the Investor. The
indemnity agreement contained in this Section 6(b) shall not
apply to amounts paid in settlement of any such claims, losses,
damages or liabilities if such settlement is effected without the
written consent of the Investor (which consent shall not be
unreasonably withheld).
(c) Procedure. Each party entitled to indemnification
under this Article (the "Indemnified Party") shall give notice to
the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any
such claim in any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the defense
of such claim or any litigation resulting therefrom, shall be
approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate
in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its
obligations under this Article except to the extent that the
Indemnifying Party is materially and adversely affected by such
failure to provide notice. The Indemnifying Party shall not, in
connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any
local counsel) at any time for such Indemnified Party, provided,
however, that if separate firm(s) of attorneys are required due
to a conflict of interest, then the indemnifying party shall be
liable for the reasonable fees and expenses of each such separate
firm. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any
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settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to
such claim or litigation. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall
be reasonably required in connection with the defense of such
claim and litigation resulting therefrom.
7. Contribution. If the indemnification provided for in
Section 6 herein is unavailable to the Indemnified Parties in
respect of any losses, claims, damages or liabilities referred to
herein (other than by reason of the exceptions provided therein),
then each such 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 (i) as between the Company and the
Investor on the one hand and the underwriters on the other, in
such proportion as is appropriate to reflect the relative
benefits received by the Company and the Investor on the one hand
or underwriters, as the case may be, on the other from the
offering of the Registrable Securities, or if such allocation is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the
Investor, on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or li-
abilities, as well as any other relevant equitable considerations
and (ii) as between the Company on the one hand and the Investor
on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of the Investor 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 benefits received by the Company on the one
hand and the Investor, on the other shall be deemed to be in the
same proportion as the proceeds from the offering received by the
Company from the initial sale of the Registrable Securities by
the Company to the Investor pursuant to this Registration Rights
Agreement bear to the proceeds received by the Investor from the
sale of Registrable Securities pursuant to a Registration
Statement. The relative fault of the Company on the one hand and
of the Investor on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Company or by the Investor.
In no event shall the obligation of any Indemnifying Party
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to contribute under this Section 7 exceed the amount that such
Indemnifying Party would have been obligated to pay by way of
indemnification if the indemnification provided for under Section
6(a) or 6(b) hereof had been available under the circumstances.
The Company and the Investor agree that it would not be just
and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party
as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraphs shall be
deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
section, no Investor shall be required to contribute any amount
in excess of the amount by which the Investor, the total price at
which the shares of Common Stock offered by the Investor and
distributed to the public, or offered to the public, exceeds the
amount any damages that the Investor has otherwise been required
to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
8. Survival. The indemnity and contribution agreements
contained in Sections 6 and 7 and the representations and
warranties of the Company referred to in Section 2(e)(i) shall
remain operative and in full force and effect regardless of (i)
any termination of the Investor Agreement or any underwriting
agreement, (ii) any investigation made by or on behalf of any
Indemnified Party or by or on behalf of the Company and (iii) the
consummation of the sale or successive resales of the Registrable
Securities.
9. Information by Investor. The Investor shall promptly
furnish to the Company such information regarding the Investor
and the distribution proposed by such Investor as the Company may
reasonably request in writing and as shall be reasonably required
in connection with any registration, qualification or compliance
referred to in this Registration Rights Agreement. All
information provided to the Company by the Investor shall be
accurate and complete in all material respects and the Investor
shall promptly notify the Company if any such information becomes
incorrect or incomplete. If the Investor does not timely provide
all such reasonably requested information, it shall not be
entitled to the liquidated damages contemplated by paragraph
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2(b)(ii) to the extent that such delay in the Registration
Statement becoming effective is caused by such failure to timely
provide information unless such Investor shall be able to
demonstrate to the Company's satisfaction that such failure to
timely provide did not proportionately contribute to the event
giving rise to the indemnity obligation.
10. Transfer or Assignment of Registration Rights. Neither
this Registration Rights Agreement nor any rights of the Investor
or the Company hereunder may be assigned by either party to any
other person; provided, however, that the Investor may assign
this Agreement with the consent of the Company, which consent
shall not be unreasonably withheld. Notwithstanding the
foregoing, the Investor's rights and obligations under this
Registration Rights Agreement may be assigned at any time, in
whole or in part, to any affiliate of the Investor (a "Permitted
Transferee"), and the rights and obligation of the Investor under
this Registration Rights Agreement shall inure to the benefit of,
and be enforceable by and against, any such Permitted Transferee.
11. Miscellaneous.
(a) Entire Agreement. This Registration Rights
Agreement contains the entire understanding and agreement of the
parties relating to the registration of Shares underlying the
Warrant and the Additional Warrants, and may not be modified or
terminated except by a written agreement signed by both parties.
(b) Notices. Any notice or other communication given or
permitted under this Registration Rights Agreement shall be in
writing and shall be deemed to have been duly given if personally
delivered or sent by registered or certified mail, return receipt
requested, postage prepaid or by air courier, (a) if to Investor,
at its address hereinabove set forth, (b) if to the Company, to
Immunomedics, Inc., at its address hereinabove set forth, and (c)
if to a Permitted Transferee, at the address thereof furnished by
like notice to the Company, or (d) to any such address at such
other addresses as shall be so furnished to the other parties by
like notice.
(c) Gender of Terms. All terms used herein shall be
deemed to include the feminine and the neuter, and the singular
and the plural, as the context requires.
(d) Governing Law; Consent of Jurisdiction; Waiver of
Jury Trial. This Registration Rights Agreement and the validity
and performance of the terms hereof shall be governed by and
construed in accordance with the laws of the State of New York
without regard to principles of conflicts of law or choice of
law, except to the extent that the law of Delaware regulates the
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Company's issuance of securities. The parties hereto hereby
agree that all actions or proceedings arising directly or
indirectly from or in connection with this Registration Rights
Agreement 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. To the extent permitted by applicable law, the parties
hereto 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 Registration Rights Agreement (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 Registration Rights Agreement.
(e) Titles. The titles used in this Registration Rights
Agreement are used for convenience only and are not to be
considered in construing or interpreting this Registration Rights
Agreement.
(f) Rule 144. The Company will use its reasonable
best efforts to file all reports required to be filed by it under
the Securities Act and the Exchange Act and that it will take
such further action as holders of Registrable Securities may
reasonably request, all to the extent required from time to time
to enable the Investor to sell Registrable Securities without
registration under the Act within the limitation of the
exemptions provided by (a) Rule 144, as such Rule may be amended
from time to time, or (b) any similar role or regulation
hereafter adopted by the SEC. If at any time the Company is not
required to file such reports, it will, upon the request of the
Investor, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144. Upon the request
of the Investor, the Company will deliver to the Investor a
written statement as to whether it has complied with such
requirements.
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IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed as of the date
first above written.
CRIPPLE CREEK SECURITIES, L.L.C. IMMUNOMEDICS, INC.,
By:_________________________ By:_________________________
Name:_______________________ Name:_______________________
Title:______________________ Title:______________________
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