Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IMMUNOMEDICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 61-1009366 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 300 American Road Morris Plains, New Jersey 07950 (Address of Principal Executive Offices) (Zip Code) |
IMMUNOMEDICS, INC.
1992 STOCK OPTION PLAN
(Full title of the plan)
David M. Goldenberg
Immunomedics, Inc.
300 American Road
Morris Plains, New Jersey 07950
973-605-8200
(Name, address and telephone number, including area code,
of agent for service)
with a copy to:
Laura R. Kuntz, Esq.
LOWENSTEIN SANDLER PC
65 Livingston Avenue
Roseland, New Jersey 07068
CALCULATION OF REGISTRATION FEE
================================================================================================================
Proposed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price per offering registration
registered registered unit (1) price fee
----------------------------------------------------------------------------------------------------------------
Common Stock,
$0.01 par value 5,000,000 sh(2) $19.625 $98,125,000 $24,531.25
----------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 457, the proposed maximum offering price per share is
estimated solely for the purpose of computing the amount of the
registration fee and is based on the average of the high and low sales
prices of the Common Stock of the registrant reported on the Nasdaq
National Market on January 3, 2001.
(2) Plus such indeterminate number of additional shares as shall become
issuable pursuant to the anti-dilution provisions of the above-mentioned
plan.
================================================================================================================
|
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by Immunomedics, Inc. (the "Company") with the Securities and Exchange Commission (the "SEC"), are hereby incorporated by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 2000;
(b) the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2000; and
(c) the description of the Common Stock of the Company contained in the Company's most recent registration statement filed under the Securities Exchange Act of 1934.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that such statement is modified or
superseded by a subsequently filed document which also is or is deemed to be
incorporated by reference herein. Any such statement so modified or superseded
shall not be deemed to constitute a part of this registration statement except
as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law provides, in substance, that Delaware corporations shall have the power, under specified circumstances, to indemnify their directors, officers, employees and agents in connection with actions or suits by or in the right of the corporation, by reason of the fact that they were or are such directors, officers, employees and agents, against expenses (including attorneys' fees) and, in the case of actions, suits or proceedings brought by third parties, against judgments, fines and amounts paid in settlement actually and reasonably incurred in any such action, suit or proceeding.
The Company's Certificate of Incorporation provides that a director shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability (i) for breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. The Company's Bylaws also provide that the Company may indemnify its directors, officers and legal representatives to the fullest extent permitted by Delaware law against all awards and expenses (including attorneys' fees).
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on July 6, 1982 (a)
4.2 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on April 4, 1983 (a)
4.3 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on December 14, 1984 (a)
4.4 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on March 19, 1986 (a)
4.5 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on November 17, 1986 (a)
4.6 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on November 21, 1990 (b)
4.7 Certificate of Designation of Rights and Preferences, as filed with the Secretary of State of the State of Delaware on March 1, 1991 (c)
4.8 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on December 7, 1992 (d)
4.9 Certificate of Designation of Rights and Preferences of the
Company's Series B Convertible Preferred Stock filed with the
Secretary of State of the State of Delaware on December 21, 1994
(e)
4.10 Certificate of Designation of Rights and Preferences of the
Company's Series C Convertible Preferred Stock as filed with the
Secretary of State of the State of Delaware on September 25, 1995
(f)
4.11 Certificate of Designation of Rights and Preferences of the Company's Series D Convertible Preferred Stock as filed with the Secretary of State of the State of Delaware on June 26, 1996 (g)
4.12 Certification of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on November 7, 1996 (h)
4.13 Certificate of Designation of Rights and Preferences of the Company's Series E Junior Participating Preferred Stock, as filed with the Secretary of State of the State of Delaware on January 23, 1998 (i)
4.14 Amended Certificate of Designations, Preferences and Rights of Series F Convertible Preferred Stock of Immunomedics, Inc. (j)
4.15 Amended and Restated By-Laws of the Company (k)
4.16 Structured Equity Line Flexible Financing Agreement, dated as of December 23, 1997, between Immunomedics, Inc. and Cripple Creek Securities, LLC (l)
4.17 Registration Rights Agreement, dated as of December 23, 1997, between Immunomedics, Inc. and Cripple Creek Securities, LLC (l)
4.18 Common Stock Purchase Warrant issued to Cripple Creek Securities, LLC (l)
4.19 Form of additional Common Stock Purchase Warrant issuable to Cripple Creek Securities, LLC (l)
4.20 Rights Agreement, dated as of January 23, 1998, between Immunomedics, Inc. and American Stock Transfer and Trust Company, as rights agent, and form of Rights Certificate (i)
5.1 Opinion of Lowenstein Sandler PC
23.1 Consent of KPMG LLP
24.1 Power of Attorney
(a) Incorporated by reference from the Exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1990.
(b) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1990.
(c) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1991.
(d) Incorporated by reference from the Exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1993.
(e) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1994.
(f) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1995.
(g) Incorporated by reference from the Exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1996.
(h) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1996.
(i) Incorporated by reference from the Exhibits to the Company's
Registration Statement on Form 8-A, as filed with the Commission
on January 29, 1998.
(j) Incorporated by reference from the Exhibits to the Company's
Current Report on Form 8-K, dated December 15, 1998.
(k) Incorporated by reference from the Exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1993.
(l) Incorporated by reference from the Exhibits to the Company's
Registration Statement on Form S-3 as filed with the Commission on
January 29, 1998.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1993;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that Paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The undersigned registrant undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel that matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Morris Plains, State of New Jersey, on the 4th day of January, 2001.
IMMUNOMEDICS, INC.
By: /s/ David M. Goldenberg
------------------------------------------
David M. Goldenberg, Chairman of the Board
and Chief Executive Officer
|
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signatures Title Date /s/ David M. Goldenberg Chairman of the Board, Chief Executive Officer and January 4, 2001 ------------------------ Director (Principal Executive Officer) David M. Goldenberg /s/ Morton Coleman* Director January 4, 2001 ------------------------ Morton Coleman /s/ Martin E. Jaffe Director January 4, 2001 ------------------------ Marvin E. Jaffe /s/ Richard R. Pivirotto* Director January 4, 2001 ------------------------ Richard R. Pivirotto /s/ Shailesh R. Asher* Controller and Acting Chief Financial Officer January 4, 2001 ------------------------ (Principal Financial and Accounting Officer) Shailesh R. Asher |
*By: /s/ David M. Goldenberg
-----------------------
David M. Goldenberg
Attorney-in-Fact
|
EXHIBIT INDEX
4.1 Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on July 6, 1982 (a)
4.2 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on April 4, 1983 (a)
4.3 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on December 14, 1984 (a)
4.4 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on March 19, 1986 (a)
4.5 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on November 17, 1986 (a)
4.6 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on November 21, 1990 (b)
4.7 Certificate of Designation of Rights and Preferences, as filed with the Secretary of State of the State of Delaware on March 1, 1991 (c)
4.8 Certificate of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on December 7, 1992 (d)
4.9 Certificate of Designation of Rights and Preferences of the
Company's Series B Convertible Preferred Stock filed with the
Secretary of State of the State of Delaware on December 21, 1994
(e)
4.10 Certificate of Designation of Rights and Preferences of the
Company's Series C Convertible Preferred Stock as filed with the
Secretary of State of the State of Delaware on September 25, 1995
(f)
4.11 Certificate of Designation of Rights and Preferences of the Company's Series D Convertible Preferred Stock as filed with the Secretary of State of the State of Delaware on June 26, 1996 (g)
4.12 Certification of Amendment of the Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on November 7, 1996 (h)
4.13 Certificate of Designation of Rights and Preferences of the Company's Series E Junior Participating Preferred Stock, as filed with the Secretary of State of the State of Delaware on January 23, 1998 (i)
4.14 Amended Certificate of Designations, Preferences and Rights of Series F Convertible Preferred Stock of Immunomedics, Inc. (j)
4.15 Amended and Restated By-Laws of the Company (k)
4.16 Structured Equity Line Flexible Financing Agreement, dated as of December 23, 1997, between Immunomedics, Inc. and Cripple Creek Securities, LLC (l)
4.17 Registration Rights Agreement, dated as of December 23, 1997, between Immunomedics, Inc. and Cripple Creek Securities, LLC (l)
4.18 Common Stock Purchase Warrant issued to Cripple Creek Securities, LLC (l)
4.19 Form of additional Common Stock Purchase Warrant issuable to Cripple Creek Securities, LLC (l)
4.20 Rights Agreement, dated as of January 23, 1998, between Immunomedics, Inc. and American Stock Transfer and Trust Company, as rights agent, and form of Rights Certificate (i)
5.1 Opinion of Lowenstein Sandler PC
23.1 Consent of KPMG LLP
24.1 Power of Attorney
(a) Incorporated by reference from the Exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1990.
(b) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1990.
(c) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1991.
(d) Incorporated by reference from the Exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1993.
(e) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1994.
(f) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1995.
(g) Incorporated by reference from the Exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1996.
(h) Incorporated by reference from the Exhibits to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1996.
(i) Incorporated by reference from the Exhibits to the Company's
Registration Statement on Form 8-A, as filed with the Commission
on January 29, 1998.
(j) Incorporated by reference from the Exhibits to the Company's
Current Report on Form 8-K, dated December 15, 1998.
(k) Incorporated by reference from the Exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1993.
(l) Incorporated by reference from the Exhibits to the Company's
Registration Statement on Form S-3 as filed with the Commission on
January 29, 1998.
Exhibit 5.1
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
January 4, 2001
Immunomedics, Inc.
300 American Road
Morris Plains, New Jersey
07950
Re: Registration Statement on Form S-8 under the Securities Act of 1933, as amended
Ladies and Gentlemen:
We have acted as counsel to Immunomedics, Inc., a Delaware corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of an additional 5,000,000 shares (the "Shares") of the Company's common stock issuable pursuant to the Immunomedics, Inc. 1992 Stock Option Plan (the "Plan") pursuant to a Registration Statement on Form S-8 (the "Registration Statement").
As such counsel, we have reviewed the corporate proceedings taken by the Company with respect to the authorization of the issuance of the Shares. We have also examined and relied upon originals or copies of such corporate records, documents, agreements or other instruments of the Company as we have deemed necessary to review. As to all matters of fact (including factual conclusions and characterizations and descriptions of purpose, intention or other state of mind), we have entirely relied upon certificates of officers of the Company, and have assumed, without independent inquiry, the accuracy of those certificates.
We have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing a document. We have also assumed that the registration requirements of the Act and all applicable requirements of state laws regulating the sale of securities will have been duly satisfied.
We further assume that all Shares issued will be issued in accordance with the terms of the Plan.
This opinion is limited solely to the Delaware General Corporation Law as applied by courts located in Delaware.
Subject to the foregoing, it is our opinion that the Shares, when issued and delivered in accordance with the terms of the Plan, will be duly authorized, validly issued and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Lowenstein Sandler PC ----------------------------------- LOWENSTEIN SANDLER PC |
Exhibit 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Immunomedics, Inc. :
We consent to the use of our report incorporated herein by reference.
KPMG LLP
Short Hills, New Jersey
January 2, 2001
Exhibit 24.1
POWER OF ATTORNEY
WHEREAS, the undersigned officers and directors of Immunomedics, Inc. desire to authorize David M. Goldenberg and Cynthia L. Sullivan to act as their attorneys-in-fact and agents, for the purpose of executing and filing a registration statement on Form S-8, including all amendments thereto,
NOW, THEREFORE,
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David M. Goldenberg and Cynthia L. Sullivan, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to sign a Registration Statement on Form S-8 registering an additional 5,000,000 shares of the Common Stock of Immunomedics, Inc. issuable pursuant to the Immunomedics, Inc. 1992 Stock Option Plan, including any and all amendments and supplements thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this power of attorney in the following capacities on this 4th day of January, 2001.
Signature: Title: ----------------------------- Chairman of the Board, Chief Executive David M. Goldenberg Officer and Director /s/ Morton Coleman Director ----------------------------- Morton Coleman ----------------------------- Director Marvin E. Jaffe /s/ Richard R. Pivirotto Director ----------------------------- Richard R. Pivirotto /s/ Shailesh R. Asher Controller and Acting Chief Financial Officer ----------------------------- Shailesh R. Asher |