Exhibit 10.1
IMMUNOMEDICS, INC.
5% Senior Convertible Notes Due 2008
PURCHASE AGREEMENT
------------------
April 27, 2005
IMMUNOMEDICS, INC., a Delaware corporation (the "Company"),
hereby
confirms its agreement with _______________
(the "Purchaser") as set forth
below.
1. Notes. The Company proposes to issue and sell to the
Purchaser
$__________________________ principal
amount of its 5% Senior Convertible Notes
Due 2008 (the "Firm Notes") and Warrants
(the "Firm Warrants" and, together with
the Firm Notes, the "Firm Securities")
entitling the holder thereof to exercise
such Warrants to purchase up to ___ shares
of common stock, par value $0.01, of
the Company (the "Common Stock"). In
addition, the Company proposes to grant to
the Purchaser an option to purchase up to
an additional $____ principal amount
of its 5% Senior Convertible Notes due 2008
(the "Option Notes" and, together
with the Firm Notes, the "Notes") and
Warrants to purchase an additional
[_______] shares of Common Stock (the
"Option Warrants" and, together with the
Firm Warrants, the "Warrants"). The Notes
and Warrants together are referred to
herein as the "Securities" and the Option
Notes and Option Warrants together are
referred to herein as the "Option
Securities". The Notes are to be issued under
an indenture (the "Indenture") to be dated
as of the Closing Date (as defined
below) by and between the Company and Law
Debenture Trust Company of New York,
as trustee (the "Trustee"). The Warrants
are to be issued pursuant to a warrant
agreement, to be dated the Closing Date,
between the Company and JPMorgan Chase
Bank, N.A., as warrant agent (the Warrant
Agreement). This Agreement, the other
Purchase Agreements dated the date hereof
entered into among the Company and the
other Purchasers named therein (the "Other
Purchase Agreements"), the lock-up
agreements contemplated by this Agreement,
the registration rights agreement, to
be dated the Closing Date, by and between
the Purchaser and the Company (the
"Registration Rights Agreement"), the
escrow agreement between the Company and
JPMorgan Chase Bank, N.A., as escrow agent,
to be dated on or about the Closing
Date (the "Escrow Agreement"), the Warrant
Agreement, and the Indenture (with
the Notes and the Warrants included
therein) are hereinafter collectively
referred to as the "Transaction Documents"
and the transactions contemplated
herein and therein are hereinafter referred
to as the "Transactions".
The Company has prepared a Private Placement Memorandum dated
April
27, 2005 and will prepare supplements to
such Private Placement Memorandum, if
required, setting forth information
concerning the Company, the Notes, the
Warrants, the Transaction Documents and
certain other matters (the "Private
Placement Memorandum").
The sale of the Notes and the Warrants to the Purchaser will be
made
without registration of the Notes or the
Warrants under the Securities Act of
1933, as amended (the "Securities Act"), in
reliance upon certain exemptions
from the registration requirements of the
Securities Act.
The Company will issue a minimum of $35 million and a maximum of
$46
million in aggregate principal amount of
Notes and Warrants to purchase up to
approximately 3,600,000 shares. The Company
intends to either (i) use up to $10
million of such proceeds to repay or
repurchase a corresponding principal amount
of its outstanding 3.25% Convertible Senior
Notes due 2006 or (ii) exchange up
to $10 million of the Notes for up to a
corresponding amount of its outstanding
3.25% Convertible Senior Notes due
2006.
2. Representations and Warranties and Covenants of the Company.
The
Company represents and warrants to, and
agrees with, the Purchaser that, except
as otherwise disclosed in the Company's
Annual Report on Form 10-K (the "Company
Annual Report") most recently filed with
the Securities and Exchange Commission
(the "SEC") and all subsequently filed
reports or documents filed prior to the
date hereof (collectively with the Company
Annual Report, the "Exchange Act
Reports"):
(a) The Private Placement Memorandum, and Exchange Act Reports
that
have been, or will be, filed by the Company
with the SEC or sent to shareholders
pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange
Act"), as of their respective dates and as
of the Closing Date, do not and will
not include any untrue statement of a
material fact or omit to state any
material fact necessary in order to make
the statements therein, in the light of
the circumstances under which they were or
will be made, not misleading. Such
documents, when filed with the SEC, as
applicable did, or will, conform in all
material respects to the requirements of
the Exchange Act and the rules and
regulations of the SEC thereunder.
(b) The Company has no direct or indirect subsidiaries other
than
those subsidiaries (the "Subsidiaries")
listed on Schedule 2 hereto.
(c) Each of the Company and the Subsidiaries has been duly
incorporated and each is validly existing
as a corporation in good standing
under the laws of the jurisdiction in which
it is chartered or organized, is
duly qualified to do business as a foreign
corporation and each is in good
standing under the laws of each
jurisdiction where it owns or leases material
properties or conducts business, except in
such jurisdictions in which the
failure to so qualify, in the aggregate,
would not have a Material Adverse
Effect. "Material Adverse Effect" as used
in this Purchase Agreement shall mean
a material adverse effect on (i) the
business, operations, properties, assets,
liabilities, net worth, or financial
condition of the Company and the
Subsidiaries, taken as a whole, or (ii) the
ability of the Company to perform
any of its obligations under the
Transaction Documents, the Notes or the
Warrants or to consummate the
Transactions.
(d) Neither the Company nor any of the Subsidiaries is (i) in
violation of its charter or by-laws or (ii)
in breach or violation of any of the
terms or provisions of, or with the giving
of notice or lapse of time, or both,
would be in default under, any indenture,
mortgage, deed of trust, loan
agreement or other agreement or instrument
to which the Company or any of the
Subsidiaries is a party or by which it or
any of them or any of their respective
properties is bound, or any applicable law
or statute or any order, rule or
regulation of any court or governmental
agency or body having jurisdiction over
the Company, the Subsidiaries or any of
their respective properties, except for
violations and defaults which individually
or in the aggregate would not have a
Material Adverse Effect with respect to
clause (ii) of this paragraph.
(e) Each of the Company and the Subsidiaries owns, possesses or
has
obtained all licenses, permits,
certificates, consents, orders, approvals and
other authorizations from, and has made all
declarations and filings with, all
federal, state, local and other
governmental authorities, all self-regulatory
organizations and all courts and other
tribunals, domestic or foreign, necessary
to own or lease, as the case may be, and to
operate the properties and to carry
on the business of the Company and its
Subsidiaries as is currently conducted
and each of them is in full force and
effect, except in each case where the
failure to obtain licenses, permits,
certificates, consents, orders, approvals
and other authorizations, or to make all
declarations and filings, would not,
individually or in the aggregate, have a
Material Adverse Effect, and none of
the Company or the Subsidiaries has
received any notice relating to revocation
or modification of any such license,
permit, certificate, consent, order,
approval or other authorization, except
where such revocation or modification
would not, individually or in the
aggregate, have a Material Adverse Effect.
(f) The authorized
capital stock of the Company consists of
70,000,000 shares of Common Stock, and
10,000,000 shares of preferred stock, par
value $0.01 per share. As of March 31,
2005, (i) 54,073,059 shares of Common
Stock were issued and outstanding, (ii) no
shares of preferred stock are issued
and outstanding, (iii) 1,642,036 shares of
Common Stock were reserved for
issuance upon conversion of the Company's
3.25% Convertible Senior Notes due
2006, and (iv) 6,790,875 shares of Common
Stock were reserved for issuance upon
exercise of Company options under the
Company's 1992 and 2002 Stock Option Plans
(the "Stock Option Plans"). All of the
issued shares of capital stock of the
Company have been duly authorized and
validly issued, are fully paid and
nonassessable. The Company is not in
violation of or subject to any preemptive
or similar right that does or will entitle
any person, upon the issuance or sale
of any security, to acquire from the
Company or any Subsidiary any other
security of the Company or any Subsidiary
or any security convertible into, or
exercisable or exchangeable for ay other
such security, except for such rights
as may have been fully satisfied or
waived.
(g) Except as set forth in the Private Placement Memorandum and
except with respect to the rights contained
in the Registration Rights
Agreement, there are no contracts,
agreements or other documents between the
Company and any person granting such person
the right to require the Company to
file a registration statement under the
Securities Act with respect to any
securities of the Company owned or to be
owned, directly or indirectly, by such
person.
(h) The issued shares of capital stock of each Subsidiary have
been
duly authorized and validly issued, are
fully paid and nonassessable and are
owned of record and beneficially by the
Company, either directly or through
wholly owned subsidiaries, free and clear
of any pledge, lien, encumbrance,
security interest, restriction on voting or
transfer, preemptive rights or other
defect in title or any claim of any third
party.
(i) Subject to receipt of shareholder approval for the Share
Increase (as defined below), the shares of
Common Stock of the Company issuable
upon conversion of, or in satisfaction of
the obligation to make certain
interest payments on, the Notes (the "Note
Shares") and issuable on exercise of
the Warrants (the "Warrant Shares" and,
together with the Note Shares, the
"Shares") will be duly and validly issued,
fully paid and nonassessable and not
subject to preemptive or similar rights,
and such Shares will be issued in
compliance with all applicable federal and
state securities laws, when issued,
sold and delivered in accordance with the
terms of the Notes and the Warrants,
as the case may be. The Company currently
has 8,915,000 shares of its Common
Stock available for issuance, including
upon conversion and exercise of the
Securities, and, following the Share
Increase, will reserve an additional
5,500,000 shares of its Common Stock for
issuance upon conversion and exercise
of the Securities.
(j) No Subsidiary is prohibited, directly or indirectly, from
paying
any dividends to the Company, from making
any other distribution on such
Subsidiary's capital stock, from repaying
to the Company any loans or advances
to such Subsidiary from the Company or from
transferring any of such
Subsidiary's property or assets to the
Company or any other Subsidiary.
(k) Other than as set forth in paragraph (f) above, there are
no
outstanding (i) securities or obligations
of the Company convertible into or
exchangeable for any capital stock of the
Company, (ii) warrants, rights or
options to subscribe for or purchase from
the Company any such capital stock or
any such convertible or exchangeable
securities or obligations, or (iii)
obligations of the Company to issue such
shares, any such convertible or
exchangeable securities or obligations, or
any such warrants, rights or options.
(l) Other than the Company's Common Stock, there are no
outstanding
securities of the Company registered under
the Exchange Act, or listed on a
national securities exchange or quoted in a
U.S. automated inter-dealer
quotation system.
(m) The consolidated financial statements (including the notes
thereto) included in the Exchange Act
Reports fairly present the financial
position of the Company and its
consolidated subsidiaries and the results of
operations as of the dates and for the
periods specified therein; since the date
of the latest of such financial statements,
there has been no change nor any
development or event involving a
prospective change which will have or would
reasonably be expected to have a Material
Adverse Effect; such financial
statements have been prepared in accordance
with generally accepted accounting
principles in the United States applied on
a consistent basis.
(n) Since the date of the latest audited financial statements
included in the Exchange Act Reports, (i)
the Company and each of the
Subsidiaries has not incurred any material
liability or obligation, direct or
contingent, nor has the Company or any
Subsidiary entered into any material
transaction not in the ordinary course of
business; (ii) the Company has not
purchased any of its outstanding capital
stock, nor declared, paid or otherwise
made any dividend or distribution of any
kind on its capital stock; and (iii)
there has not been any material change in
the capital stock, short-term debt or
long-term debt of the Company and each of
the Subsidiaries.
(o) The Company and each of the Subsidiaries maintain a system
of
internal accounting controls sufficient to
provide reasonable assurances that
(i) transactions are executed in accordance
with management's general or
specific authorizations; (ii) transactions
are recorded as necessary to permit
preparation of financial statements in
conformity with generally accepted
accounting principles and to maintain asset
accountability; (iii) access to
assets is permitted only in accordance with
management's general or specific
authorization; and (iv) the recorded
accountability for assets is compared with
the existing assets at reasonable intervals
and appropriate action is taken with
respect to any differences.
(p) The Company is in compliance in all material respects with
the
Sarbanes-Oxley Act of 2002.
(q) Ernst & Young LLP (the "Company Accountants"), who have
certified the financial statements of the
Company and whose report is
incorporated by reference in the Private
Placement Memorandum are independent
public accountants; and the Company
Accountants, whose report is incorporated by
reference in the Private Placement
Memorandum were independent accountants as
required by the Exchange Act during the
periods covered by the financial
statements on which they reported.
(r) The Company has all necessary power and authority to execute
and
deliver this Agreement and each of the
other Transaction Documents, and to
perform its obligations hereunder and
thereunder, to issue the Notes and the
Warrants, and subject to the Share
Increase, the Shares, and to consummate the
other Transactions. The Transaction
Documents and the Private Placement
Memorandum have been duly authorized by all
necessary corporate action of the
Company and, when the Transaction Documents
have been duly executed and
delivered by the Company and the other
party or parties thereto, will constitute
legal, valid and binding obligations of the
Company, enforceable against the
Company in accordance with their respective
terms, subject, as to the
enforcement of remedies, to general equity
principles and to applicable
bankruptcy, reorganization, insolvency,
moratorium or other laws affecting
creditors' rights generally from time to
time in effect, and except as rights to
indemnity and contribution may be limited
by federal or state securities laws.
(s) The Notes have been duly authorized by all necessary
corporate
action for issuance and sale pursuant to
this Agreement and, when executed,
authenticated, issued and delivered in the
manner provided for in the Indenture
and sold and paid for as provided in this
Agreement, the Notes will constitute
legal, valid and binding obligations of the
Company and enforceable against the
Company in accordance with their terms,
subject, as to the enforcement of
remedies, to general equity principles and
to applicable bankruptcy,
reorganization, insolvency, moratorium or
other laws affecting creditors rights
generally from time to time in effect.
(t) The Indenture meets the requirements for qualification and,
upon
the effectiveness of the Exchange Offer
Registration Statement, will be
qualified, under the Trust Indenture Act of
1939, as amended, and the rules and
regulations of the Commission thereunder
(collectively, the "Trust Indenture
Act"); and each of the Transaction
Documents will conform, when executed and
delivered, in all material respects to the
description thereof contained in the
Private Placement Memorandum.
(u) The Warrants have been duly authorized by all necessary
corporate action for issuance and sale
pursuant to this Agreement and when
executed, countersigned, issued and
delivered in the manner provided for in the
Warrant Agreement and sold and paid for as
provided in this Agreement, the
Warrants will constitute legal, valid and
binding obligations of the Company and
enforceable against the Company in
accordance with their terms, subject, as to
the enforcement of remedies, to general
equity principles and to applicable
bankruptcy, reorganization, insolvency,
moratorium or other laws affecting
creditors rights generally from time to
time in effect.
(v) The issuance, offering and sale of the Notes and the Warrants
to
the Purchaser by the Company, pursuant to
this Agreement, and the compliance by
the Company with the other provisions of
the Transaction Documents herein and
therein set forth do not and will not (i)
require the consent, approval,
authorization, order, registration or
qualification of, or filing with, any
governmental authority or court, or body or
arbitrator having jurisdiction over
the Company or any other third party, other
than with respect to the Share
Increase, or (ii) conflict with, result in
a breach or violation of, or
constitute a default under, (A) any
indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the
Company and its subsidiaries are a
party or by which the Company or any of its
properties is bound, (B) subject to
the receipt of shareholder approval for the
Share Increase, the charter or
by-laws of the Company, (C) any material
statute, rule or regulation of any
governmental authority applicable to the
Company or any of its properties or
assets, or (D) any judgment, order or
decree of any government, government
instrumentality, agency, body or court
having jurisdiction over the Company, its
subsidiaries or any of their properties or
assets.
(w) No legal or governmental proceedings or investigations are
pending to which the Company or any of its
subsidiaries is a party or to which
the property of the Company or any of its
subsidiaries is subject, and no such
proceedings or investigations have been
threatened against the Company or any of
its subsidiaries in writing or with respect
to any of its properties, except in
each case for such proceedings or
investigations that, if the subject of an
unfavorable decision, ruling or finding,
would not, singly or in the aggregate,
result in a Material Adverse Effect.
(x) Neither the Company nor any of the Subsidiaries owns any
"margin
securities" as that term is defined in
Regulation U of the Board of Governors of
the Federal Reserve System (the "Federal
Reserve Board"), and none of the
proceeds of the sale of the Notes will be
used, directly or indirectly, for the
purpose of purchasing or carrying any
margin security, for the purpose of
reducing or retiring any indebtedness which
was originally incurred to purchase
or carry any margin security or for any
other purpose which might cause any of
the Notes to be considered a "purpose
credit" within the meanings of Regulation
T, U or X of the Federal Reserve Board.
(y) No relationship, direct or indirect, exists between or among
the
Company or any of the Subsidiaries, on the
one hand, and the directors,
officers, shareholders, customers or
suppliers of the Company or any of the
Subsidiaries on the other hand, that
relates to the Transactions and that would
be required by the Securities Act to be
described in a prospectus were the Notes
being issued and sold in a public offering,
that is not set forth in the
Company's Exchange Act Reports.
(z) The fair saleable value of the assets of the Company exceeds
the
amount that will be required to be paid on
or in respect of its existing debts
and other known liabilities (including
known contingent liabilities) as they
mature; the Company does not intend to, and
does not believe that it will, incur
debts beyond its ability to pay such debts
as they mature; and upon the issuance
of the Notes, the fair salable value of the
assets of the Company will exceed
the amount that will be required to be paid
on or in respect of its existing
debts and other liabilities (including
known contingent liabilities) as they
mature.
(aa) Subsequent to the Company's most recently filed Annual
Report
on Form 10-K, neither the Company nor any
of the Subsidiaries has sustained any
material loss or interference with their
respective businesses or properties
from fire, flood, hurricane, accident or
other calamity, whether or not covered
by insurance, or from any labor dispute or
any legal or governmental proceeding
and there shall not have been any material
adverse change, or any development
involving a prospective material adverse
change, in the business, operations,
properties, assets, liabilities, net worth
or financial condition of the Company
and the Subsidiaries, taken as a whole.
(bb) Other than for collateral pledged to Fleet National Bank
pursuant to a certain pledge agreement
dated May 27, 2003, the Company and each
of the Subsidiaries have good and
marketable title in fee simple to all items of
real property and marketable title to all
personal property owned by each of
them, free and clear of any pledge, lien,
encumbrance, security interest or
other defect or claim of any third party,
except such as do not materially and
adversely affect the value of such property
and do not interfere with the use
made or proposed to be made of such
property by the Company or such
Subsidiaries, and any real property and
buildings leased by the Company or such
Subsidiaries are held under valid,
subsisting and enforceable leases, with such
exceptions as are not material and do not
interfere with the use made or
proposed to be made of such property and
buildings by the Company or such
Subsidiaries.
(cc) ERISA:
(i) Definitions:
"Code" means the United States Internal Revenue Code of 1986,
as
amended,
and the regulations promulgated and the rulings issued
thereunder.
"ERISA" means the United States Employee Retirement Income
Security
Act of
1974, as amended, and the regulations promulgated and rulings
issued
thereunder.
"ERISA Affiliate," means each trade or business (whether or not
incorporated) that would be treated together with the Company as a
single
employer
under Title IV or Section 302 of ERISA or Section 412 of the
Code.
"ERISA Event" means (i) the occurrence of a "reportable event"
described in Section 4043 of
ERISA (other than an event with respect to
which the
30 day notice requirement has been waived), or (ii) the
provision
or filing of a notice of intent to terminate a Plan (other than
in a
standard termination within the meaning of Section 4041 of ERISA)
or
the
treatment of a Plan amendment as a distress termination under
Section
4041 of
ERISA, or (iii) the institution of proceedings to terminate a
Plan
by the
PBGC, or (iv) the existence of any "accumulated funding
deficiency"
or
"liquidity shortfall" (within the meaning of Section 302 of ERISA
or
Section
412 of the Code), whether or not waived, or the filing of an
application pursuant to Section 412(e) of the Code or Section 304
of ERISA
for any
extension of an amortization period, or (v) the receipt of
notice
by the
Company or any ERISA Affiliate that any Multiemployer Plan may
be
terminated, partitioned or reorganized or that any Multiple
Employer Plan
may be terminated, or
(vi) the occurrence of any transaction or event
which
might reasonably be expected to constitute grounds for the
imposition
of liability under ERISA.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section
4001(a)(3) of ERISA.
"Multiple Employer Plan" means an employee benefit plan described
in
Section
4063 of ERISA.
"Plan" means an employee benefit plan (within the meaning of
Section
3(3) of
ERISA) other than a Multiemployer Plan, sponsored or maintained
by
the
Company or any of its ERISA Affiliates, or with respect to which
the
Company or
any of its ERISA Affiliates could be subject to any liability
under
Title IV or Section 302 of ERISA or Section 412 of the Code.
"Underfunding" means, with respect to any Plan subject to Title
IV
of ERISA,
the excess, if any, of the "projected benefit obligations"
(within
the meaning of Statement of Financial Accounting Standards 87)
under such
Plan (determined using the actuarial assumptions used for
purposes
of calculating funding requirements in the most recent
actuarial
report for
such plan) over the fair market value of the assets held under
the
Plan.
(ii) No "prohibited transaction" (as defined in Section 406 of
ERISA
or Section
4975 of the Code) or ERISA Event has occurred or is reasonably
expected
to occur with respect to any Plan which could reasonably be
expected
to have a Material Adverse Effect; the Company, its ERISA
Affiliates
and each such Plan is in compliance in all material respects
with
applicable law, including ERISA and the Code; the Company and each
of
its ERISA
Affiliates have not incurred and do not expect to incur
liability
under Title IV of ERISA with respect to the termination, or
withdrawal
from, any Plan or Multiemployer Plan for which the Company or
any of the
Subsidiaries would have any liability; and each Plan that is
intended
to be qualified under Section 401(a) of the Code has filed for
or
received a
favorable determination letter from the Internal Revenue
Service
and has not been amended in any way that could reasonably be
expected
to cause the loss of such qualification. No Underfunding exists
with
respect to any Plan.
(iii) None of the Company or any of its ERISA Affiliates
contributes
to or has
any obligation to contribute to any Multiemployer Plans and
Multiple
Employer Plans.
(iv) No labor dispute with the employees of the Company and any
of
the
Subsidiaries exists or is threatened or imminent which could result
in
a Material
Adverse Effect.
(dd) The Company and each of the Subsidiaries own or otherwise
possess the right to use all patents,
trademarks, service marks, trade names and
copyrights, all applications and
registrations for each of the foregoing, and
all other proprietary rights and
confidential information used in the conduct of
their respective businesses as currently
conducted; and neither the Company nor
any of the Subsidiaries has received any
notice, or is otherwise aware, of any
infringement of or conflict with the rights
of any third party with respect to
any of the foregoing which, singly or in
the aggregate, if the subject of an
unfavorable decision, ruling or finding,
would result in a Material Adverse
Effect. All material licenses pursuant to
which the Company or any Subsidiary
uses intellectual property owned by a third
party or permits a third party to
use the intellectual property of the
Company or any Subsidiary are in full force
and effect, except as would not result in a
Material Adverse Effect.
(ee) The Company and each of the Subsidiaries are insured by
insurers of recognized financial
responsibility against such losses and risks
and in such amounts and with such
deductibles as are prudent and customary in
the businesses in which they are engaged;
neither the Company nor any such
Subsidiary has been refused any insurance
coverage sought or applied for; and
neither the Company nor any such Subsidiary
has any reason to believe that it
will not be able to renew its existing
insurance coverage as and when such
coverage expires or to obtain similar
coverage from similar insurers as may be
necessary to continue its business at a
cost that would not have a Material
Adverse Effect.
(ff) Environmental Matters:
(i) The Company and each of the Subsidiaries are and have been
in
compliance
with all applicable laws, statutes, ordinances, rules,
regulations, orders, judgments, decisions, decrees, standards,
and
requirements ("Legal Requirements") relating to: human health and
safety;
pollution;
management, disposal or release of any chemical substance,
product or
waste; and protection, cleanup, remediation or corrective
action
relating to the environment or natural resources
("Environmental
Law");
(ii) The Company and each of the Subsidiaries have obtained and
are
in
compliance with the conditions of all permits, authorizations,
licenses,
approvals, authorizations, and variances necessary under any
Environmental Law for the continued conduct in the manner now
conducted of
the
business of the Company and each of such Subsidiaries
("Environmental
Permits");
(iii) There are no past or present conditions or circumstances,
including
but not limited to pending changes in any Environmental Law or
Environmental Permit, that are likely to interfere with the conduct
of the
business
of the Company and each of the Subsidiaries in the manner now
conducted
or which would interfere with compliance with any Environmental
Law or
Environmental Permit; and
(iv) There are no past or present conditions or circumstances at,
or
arising
out of, the business, assets and properties the Company and
each
of the
Subsidiaries or any formerly leased, operated or owned
businesses,
assets or
properties of the Company and any of the Subsidiaries,
including
but not
limited to on-site or off-site disposal or release of any
chemical
substance,
product or waste, which may give rise to: (i) liabilities or
obligations for any cleanup, remediation or corrective action under
any
Environmental Law, (ii) claims arising under any Environmental Law
for
personal
injury, property damage, or damage to natural resources, (iii)
liabilities or obligations incurred by the Company and the
Subsidiaries to
comply
with any Environmental Law, or (iv) fines or penalties arising
under any
Environmental Law;
except for any noncompliance or conditions
or circumstances that, singly or in
the aggregate, would not result in a
Material Adverse Effect.
(gg) The Company and each of the Subsidiaries have filed all
federal
and state, and material foreign and local,
tax returns that are required to be
filed or have requested extensions thereof
and have paid all taxes required to
be paid by them and any other assessment,
fine or penalty levied against them,
to the extent that any of the foregoing is
due and payable, except for any such
assessment, fine or penalty that is
currently being contested in good faith and
for which the Company retains adequate
reserves. There is no action, suit,
proceeding, investigation, audit or claim
now pending or, to the Company's
knowledge, threatened by any authority
regarding any taxes relating to the
Company or any Subsidiary which, when
considered individually or in the
aggregate, would result in a Material
Adverse Effect.
(hh) Neither the Company nor any of the Subsidiaries is, or
immediately after the sale of the
Securities and the application of the proceeds
from such sale will be, an "investment
company" or a company "controlled by" an
"investment company", within the meaning of
the Investment Company Act of 1940,
as amended (the "Investment Company Act"),
and the rules and regulations of the
SEC thereunder, without taking account of
any exemption under the Investment
Company Act arising out of the number of
holders of the securities of the
Company.
(ii) Neither the Company nor any of the Subsidiaries is a
"holding
company" or a "subsidiary company" of a
holding company or its "affiliate"
within the meaning of the Public Utility
Holding Company Act of 1934, as
amended.
(jj) Neither the Company nor, to its knowledge, any of its
Affiliates, nor to its knowledge any person
acting on its or their behalf, has,
directly or indirectly, made offers or
sales of any security, or solicited
offers to buy any security, under
circumstances that would require the
registration of either of the Securities or
the Shares under the Securities Act.
As used in this Purchase Agreement,
"Affiliate" means, with respect to any
specified person, any other person that,
directly or indirectly, is in control
of, is controlled by, or is under common
control with such specified person. For
purposes of this definition, control of a
person means the power, direct or
indirect, to direct or cause the direction
of the management and policies of
such person whether by contract or
otherwise; and the terms "controlling" and
"controlled" have meanings correlative to
the foregoing.
(kk) Neither the Company, nor to its knowledge any of its
Affiliates, nor to its knowledge any person
acting on its or their behalf has
engaged in any form of general solicitation
or general advertising (within the
meaning of Regulation D) in connection with
any offer or sale of the Securities
in the United States.
(ll) Neither the Company, nor to its knowledge any of its
Affiliates, nor to its knowledge any person
acting on its or their behalf has
engaged in any directed selling efforts
with respect to the Securities, and each
of them has complied with the offering
restrictions requirement of Regulation S
under the Securities Act ("Regulation S").
Terms used in this paragraph have the
meanings given to them by Regulation S.
(mm) Neither Immunomedics, B.U. (Netherlands) nor Immunomedics
GmbH
(Germany) has any indebtedness except for
trade debt incurred in the ordinary
course of business.
(nn) Neither the Company nor to its knowledge any of its
Affiliates
(as defined in Rule 501(b) of Regulation D
under the Securities Act ("Regulation
D")) has taken, directly or indirectly, any
action designed to cause or result
in, or which has constituted or which might
reasonably be expected to cause or
result in, stabilization or manipulation of
the price of any security of the
Company to facilitate the sale or resale of
the Securities or the Shares; nor
has the Company or any Affiliate of the
Company paid or agreed to pay to any
person any compensation for soliciting
another to purchase any securities of the
Company (except as contemplated by this
Agreement).
(oo) Assuming the accuracy of the representations and warranties
of
the Purchaser in Section 4 hereof and
compliance by the Purchaser with the
procedures set forth in Section 4 hereof,
it is not necessary in connection with
the offer, sale and delivery of the
Securities to the Purchaser in the manner
contemplated by this Agreement to register
any of the Securities or the Shares
under the Securities Act or to qualify the
Indenture under the Trust Indenture
Act of 1939, as amended.
(pp) The Company has not provided to the Purchaser any material
non-public information or other information
which, according to applicable law,
rule or regulation, was required to have
been disclosed publicly by the Company
but which has not been so disclosed, other
than the material terms and
conditions of the transactions contemplated
by this Agreement, which such terms
and conditions shall be publicly disclosed
on the date hereof.
(qq) Other than the Placement Agency Agreement dated the date
hereof
among the Company and Lazard Freres
&
