UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(MARK ONE)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934. For the period ended DECEMBER 31, 1996
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 934. For the transition period from ------------ to -----------
Delaware 61-1009366
------------------------------- --------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
|
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
[X] Yes [ ]No
Indicate the number of shares outstanding of each of the issuer's classes of common stock as of the latest practicable date.
As of February 12, 1997, there were 35,988,170 shares of the registrant's common stock outstanding.
IMMUNOMEDICS, INC.
INDEX
Page No.
--------
PART I - FINANCIAL INFORMATION
- ------------------------------
Item 1. Condensed Consolidated Financial Statements (Unaudited):
Condensed Consolidated Balance Sheets - 3
December 31, 1996 and June 30,1996
Condensed Consolidated Statements of Operations - 4
three and six months ended December 31, 1996 and 1995
Condensed Consolidated Statements of Cash Flows - 5
six months ended December 31, 1996 and 1995
Notes to Condensed Consolidated Financial Statements - 6
December 31, 1996
Item 2. Management's Discussion and Analysis of 9
Financial Condition and Results of Operations
PART II- OTHER INFORMATION
- --------------------------
Item 6. Exhibits and Reports on Form 8-K 12
SIGNATURES 13
- ----------
|
IMMUNOMEDICS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
DECEMBER 31, JUNE 30,
1996 1996
----------- ----------
ASSETS
Current Assets:
Cash and Cash Equivalents $ 3,567,236 13,646,000
Marketable Securities 17,780,552 15,044,821
Inventory 706,126 193,672
Other Current Assets 1,262,109 725,291
------------ -----------
Total Current Assets 23,316,023 29,609,784
Property and Equipment, net of accumulated
depreciation of $4,269,000 and $5,372,000 at
December 31,1996 and June 30,1996, respectively 5,772,185 6,110,191
------------ -----------
$ 29,088,208 35,719,975
============ ===========
LIABILITIES AND STOCKHOLDERS EQUITY
Current Liabilities:
Accounts Payable 1,430,738 1,631,071
Other Current Liabilities 3,008,122 2,935,698
------------ -----------
Total Current Liabilities 4,438,860 4,566,769
------------ -----------
Commitments and Contingencies
Stockholders' Equity:
Preferred stock; $01 par value, authorized 10,000,000 shares;
Series C convertible, authorized 200,000 shares;
issued and outstanding 28,415 shares at June 30,1996 -- 284
Series D convertible, authorized 200,000 shares;
issued and outstanding 74,685 and 200,000 shares
at December 31,1996 and June 30,1996, respectively 747 2,000
Common stock; $.01 par value, authorized 50,000,000 shares;
issued and outstanding 35,519,995 and 34,305,485 shares
at December 31,1996 and June 30, 1996, respectively 355,200 343,055
Capital contributed in excess of par 93,064,776 92,894,349
Accumulated deficit (68,837,098) (62,080,861)
Accumulated net unrealized gain/(loss) on securities 65,723 (5,621)
------------ ----------
Total Stockholders' Equity 24,649,348 31,153,206
------------ ----------
$ 29,088,208 35,719,975
============ ==========
|
See accompanying notes to unaudited condensed consolidated financial statements.
IMMUNOMEDICS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
THREE MONTHS ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 31,
1996 1995 1996 1995
----------- ---------- ----------- ----------
REVENUES:
Product sales and royalties $ 262,406 47,130 797,065 98,972
Research and development 215,147 22,500 267,647 90,000
Interest 325,757 417,315 712,058 741,699
----------- ---------- ----------- ----------
803,310 486,945 1,776,770 930,671
----------- ---------- ----------- ----------
COSTS AND EXPENSES:
Cost of goods sold 3,677 4,884 7,967 11,884
Research and development 3,364,313 3,045,006 6,637,967 6,107,960
General and administrative 946,660 606,168 1,887,073 1,288,271
----------- ---------- ----------- ----------
4,314,650 3,656,058 8,533,007 7,408,115
----------- ---------- ----------- ----------
NET LOSS $(3,511,340) (3,169,113) $(6,756,237) (6,477,444)
=========== ========== =========== ==========
NET LOSS PER SHARE $ (0.10) $ (0.10) $ (0.19) (0.20)
=========== ========== =========== ==========
Weighted average number of
shares outstanding 35,251,126 32,767,833 34,928,931 32,099,576
=========== ========== =========== ==========
|
See accompanying notes to unaudited condensed consolidated financial statements.
IMMUNOMEDICS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
SIX MONTHS ENDED
DECEMBER 31,
1996 1995
Cash flows from operating activities:
Net loss $ (6,756,237) $ (6,477,444)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization 563,516 506,874
Changes in operating assets and liabilities (1,177,181) 58,380
------------ ------------
Net cash used in operating activities (7,369,902) (5,912,190)
------------ ------------
Cash flows from investing activities:
Purchase of marketable securities (20,280,120) (15,435,391)
Proceeds from maturities of marketable securities 17,608,581 6,664,382
Additions to property and equipment (218,359) (799,997)
------------ ------------
Net cash used in investing activities (2,889,898) (9,571,006)
------------ ------------
Cash flows from financing activities:
Issuance of convertible preferred stock, net -- 9,982,500
Exercise of stock options 181,036 371,937
------------ ------------
Net cash provided by financing activities 181,036 10,354,437
------------ ------------
Decrease in cash and cash equivalents (10,078,764) (5,128,759)
Cash and cash equivalents at beginning of period 13,646,000 7,162,837
------------ ------------
Cash and cash equivalents at end of period $ 3,567,236 $ 2,034,078
============ ============
|
IMMUNOMEDICS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
The accompanying unaudited condensed consolidated financial statements of Immunomedics, Inc. (the "Company"), which incorporate the Company's wholly-owned subsidiary Immunomedics, B.V., have been prepared in accordance with generally accepted accounting principles for interim financial information and the instructions to Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly, the statements do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. The balance sheet at June 30, 1996 has been derived from the audited financial statements at that date. Operating results for the six-month period ended December 31, 1996 are not necessarily indicative of the results that may be expected for the fiscal year ending June 30, 1997.
For further information, refer to the annual financial statements and footnotes thereto included in the Company's Form 10-K for the fiscal year ended June 30, 1996.
The Company considers all highly liquid investments with maturities of three months or less, at the time of purchase, to be cash equivalents. Included in other current assets at December 31, 1996 and June 30, 1996 is accrued interest earned on cash equivalents and marketable securities of $237,000 and $181,000, respectively.
The Company has never made payments of Federal or state income taxes and does not anticipate generating book income in fiscal 1997; therefore, no income taxes have been reflected for the six-month period ended December 31, 1996.
Net loss per share is based upon the weighted average number of common shares outstanding. Common share equivalents, consisting of outstanding stock options, are not included in the computations since the effect would be antidilutive.
IMMUNOMEDICS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
On June 27, 1996, the Company completed an equity financing pursuant to Regulation S under the Securities Act of 1933, pursuant to which several foreign investors purchased 200,000 shares of 5% Series D Convertible Preferred Stock (the "Series D Preferred") for $10,000,000. The terms of the transaction allow the investors, at their discretion, to convert the Series D Preferred into shares of the Company's common stock during a twenty-four month period beginning in June 1996, at a price equal to 89% of the average market price per share over a 20-day trading period surrounding the date of conversion. As of February 12, 1997, 171,081 shares of Series D Preferred had been converted into 1,433,439 shares of common stock.
In April 1996, the Company entered into a U.S. Marketing and Distribution Agreement for CEA-Scan(R) with Mallinckrodt Group Inc. ("Mallinckrodt Group"). Under the terms of the agreement, Mallinckrodt Group will market, sell and distribute CEA-Scan(R) in the U.S. on a consignment basis, and will commit financial resources to this effort. The Company will retain manufacturing and co-promotional rights, will pay Mallinckrodt Group a pre-determined amount or percentage of the net selling price, and will potentially commit additional financial resources to these activities.
In March 1995, the Company entered into a License Agreement with Mallinckrodt Medical B.V. ("Mallinckrodt Medical"), pursuant to which Mallinckrodt Medical will market, sell and distribute CEA-Scan(R) throughout Western Europe and in specified Eastern European countries, subject to receipt of regulatory approval in the specified countries. In addition, the Company will manufacture CEA-Scan(R), for which Mallinckrodt Medical will pay the Company a pre-determined royalty per vial or a pre-determined percentage of the net selling price.
On February 1, 1994, the Company entered into a master lease agreement, which was subsequently amended, pursuant to which the Company may lease equipment for research, development and manufacturing purposes having an aggregate acquisition cost of up to $2,200,000. The basic lease payments under the master lease agreement are determined based on current market rates of interest at the inception of each equipment schedule take-down, and are payable in monthly installments over a four-year period. The lease agreement contains an early purchase option for each equipment schedule, at an amount which is deemed to be fair
IMMUNOMEDICS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
value, exercisable no later than ninety days before the thirty-sixth installment is due. On November 1, 1996 and December 9, 1996, Company exercised the early purchase options on equipment leased on February 14, 1994 and April 1, 1994, respectively. Under the lease agreement, continued compliance with certain financial ratios is required and, in the event of default, the Company will be required to provide an irrevocable letter of credit which is generally equal to the outstanding balance of lease payments due at the time of default. As of January 31, 1997, the Company has leased equipment with a cost basis aggregating $2,014,000 under the master lease agreement. The Company has recorded lease expense for the three and six months ended December 31, 1996 of $139,000 and $269,000, respectively.
IMMUNOMEDICS
PART I - ITEM 2.
Management's Discussion and Analysis of Financial Condition and Results of Operations
Except for the historical information contained herein, the following discussion contains forward-looking statements that involve risks and uncertainties. The Company's actual results could differ materially from those discussed here. Factors that could cause or contribute to such differences include, but are not limited to, those discussed herein, as well as in the Company's Annual Report on Form 10-K for the year ended June 30, 1996, including Part I (Item 1) and Part II (Item 7).
Since its inception, the Company has been engaged primarily in the research and development of proprietary products relating to the detection, diagnosis and treatment of cancer, and more recently infectious diseases. On June 28, 1996, the FDA licensed CEA-Scan(R) for the detection of recurrent and/or metastatic colorectal cancer. On October 4, 1996 the Company received final clearance from the European Commission to market CEA-Scan(R) in all 15 countries comprising the European Union. In February 1992, the Company filed with the Health Protection Branch ("HPB") to market CEA-Scan(R) in Canada. This application remains under active review.
The Company has also filed with the Committee for Proprietary Medicinal Products ("CPMP"), seeking approval to market LeukoScan(R), an infectious disease imaging agent, for the detection and diagnosis of osteomyelitis in long bones and in diabetic foot ulcer patients. On February 14, 1997, the European Commission granted final clearance to market LeukoScan(R) in all 15 countries comprising the European Union. On December 19, 1996, the Company submitted an application to the U.S. Food and Drug Administration ("FDA") for approval of LeukoScan(R) for use in patients with bone infection or with atypical appendicitis, a second indication. On February 10, 1997, the FDA notified the Company that it had accepted this application for filing and was commencing its review. At the present time, the Company is continuing to negotiate with potential partners for the distribution of LeukoScan(R) in Europe, and in the U.S., if or when the product is approved. However, there can be no assurance that successful arrangements will be concluded, if at all, on terms acceptable to the Company.
The Company is also engaged in developing other biopharmaceutical products, which are in various states of development and clinical testing. The Company has not achieved profitable operations and does not anticipate achieving profitable operations during fiscal year 1997. The Company will continue to experience operating losses until such time, if at all, that it is able to generate sufficient revenues from sales of CEA-Scan(R), LeukoScan(R) and its other proposed IN VIVO products. Further, the Company's working capital will continue to decrease until such time, if at all, that the Company is able to generate positive cash flow from operations or until such time, if at all, that the Company receives an additional infusion of cash from the sale of the Company's securities, from other financing or from corporate alliances to finance the Company's operating expenses and capital expenditures.
Revenues for the six-month period ended December 31, 1996 were $1,777,000 as compared to $931,000 for the same period in 1995, representing an increase of $846,000. This increase was principally due to receipt of a license fee of $500,000 from a corporate partner, sales revenues from CEA-Scan(R) following its launch in October 1996, and higher government grant income.
Revenues for the three-month period ended December 31, 1996 were $803,000 as compared to $487,000 for the same period in 1995, representing an increase of $316,000. This increase was principally due to sales revenues from CEA-Scan(R) and higher government grant income, partially offset by lower interest income resulting from less cash available for investment.
Total operating expenses for the six-month period ended December 31, 1996 were $8,533,000 as compared to $7,408,000 for the same period in 1995, representing an increase of $1,125,000. Research and development costs for the six-month period ended December 31, 1996 increased by $530,000 as compared to the same period in 1995, principally resulting from expenses attributable to ongoing validation of the Company's new manufacturing facility. General and administrative costs for the six-month period ended December 31, 1996 increased by $599,000 as compared to the same period in 1995. This increase was principally due to operating expenses for Immunomedics, B.V., pre-launch marketing expenses for CEA-Scan(R) and increased legal expenses. The higher legal expenses were incurred in connection with the arbitration claim against Pharmacia & Upjohn, Inc., which was filed in June 1996, and also in connection with increased patent activity during the six-month period ended December 31, 1996.
Total operating expenses for the three-month period ended December 31, 1996 were $4,315,000 as compared to $3,656,000 for the same period in 1995, representing an increase of $659,000. Research and development costs for the three-month period ended December 31, 1996 increased by $319,000 as compared to the same period in 1995, for the same reasons as discussed above. Similarly, general and administrative costs for the three-month period ended December 31, 1996 increased by $341,000 as compared to the same period in 1995, for the same reasons as discussed above.
Net loss for the six-month period ended December 31, 1996 was $6,756,000, or $0.19 per share, as compared to a loss of $6,477,000, or $0.20 per share, for the same period in 1995. Net loss for the three-month period ended December 31, 1996 was $3,511,000, or $0.10 per share, as compared to a loss of $3,169,000, or $0.10 per share, for the same period in 1995. The higher net losses of $279,000 and $342,000 for the six- and three-month periods ended December 31, 1996 as compared to the same periods in 1995 principally resulted from higher operating expenses, partially offset by higher revenues, as discussed above. The net loss per share for the six- and three-month periods ended December 31, 1996 was positively impacted by the higher weighted average number of common shares outstanding for these periods, as compared to the same periods in 1995. The increase in the weighted average number of common shares outstanding was principally due to the conversion of Preferred Stock into the Company's Common Stock (see Note 5 to Unaudited Condensed Consolidated Financial Statements).
At December 31, 1996, the Company had working capital of $18,877,000, which represents a decrease of $6,166,000 from June 30, 1996, and had no long-term debt other than certain lease obligations (see Note 7 to Unaudited Condensed Consolidated Financial Statements). The net decrease in working capital resulted principally from the funding of operating expenses and capital expenditures.
On February 1, 1994, the Company entered into a master lease agreement, which was subsequently amended, pursuant to which the Company may lease equipment for research, development and manufacturing purposes having an aggregate acquisition cost of up to $2,200,000. The basic lease payments under the master lease agreement will be determined based on current market rates of interest at the inception of each equipment schedule take-down, and payable in monthly installments over a four-year period. The lease agreement contains an early purchase option for each equipment schedule, at an amount which is deemed to be fair value, exercisable no later than ninety days before the thirty-sixth installment is due. On November 1, 1996 and December 9, 1996, the Company exercised early purchase options on equipment leased on February 14, 1994 and April 1, 1994, respectively. Under the lease agreement, continued compliance with certain financial ratios is required and, in the event of default, the Company will be required to provide an irrevocable letter of credit which is generally equal to the outstanding balance of lease payments due at the time of default. As of January 31, 1997 the Company has leased equipment with a cost basis aggregating $2,014,000 under the master lease agreement (see Note 7 to Unaudited Condensed Consolidated Financial Statements).
The Company's liquid asset position, measured by its cash, cash equivalents and marketable securities, was $21,348,000 at December 31, 1996, representing a decrease of $7,343,000 from June 30, 1996. This decrease was principally attributable to the funding of operating expenses and capital expenditures as discussed above. It is anticipated that working capital and cash, cash equivalents and marketable securities will decrease during the remainder of fiscal year 1997 as a result of planned operating and capital expenditures. At present, the Company believes that its projected financial resources will be sufficient to fund anticipated operating expenses and capital expenditures at least through calendar year 1997. The Company intends to supplement its financial resources from time to time as market conditions permit through additional financing and/or through collaborative marketing and distribution agreements. In addition, the Company continues to evaluate various programs to raise additional capital and to seek additional revenues from the licensing of its proprietary technology. At the present time, the Company is unable to determine whether any of these future activities will be successful and, if so, the terms and timing of any definitive agreements. There can be no assurance that the Company will be able to obtain additional funds in the future.
PART II - OTHER INFORMATION:
Items 1-3 Not applicable
Item 6. Exhibits and reports on Form 8-K
(a) Exhibits
10.24 Consulting Agreement, dated December 16, 1996,
between the Company and Rolf H. Henel.
10.25 License Agreement, dated January 21, 1997, between
the Company and the Center for Molecular Medicine
and Immunology, Inc.
|
(b) Reports on Form 8-K
The Company did not file a Current Report on Form 8-K during the three-month period ended December 31, 1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
DATE: February 14, 1997 /s/ David M. Goldenberg
-----------------------
David M. Goldenberg,
Chairman, Chief Executive Officer and
Treasurer (Principal Executive Officer
and Principal Accounting Officer)
|
CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of December 16, 1996, between IMMUNOMEDICS, INC., a Delaware corporation having its principal executive office at 300 American Road, Morris Plains, New Jersey 07950 (the "Company"), and ROLF H. HENEL having an address at 30 Foxboro Road, Wayne, New Jersey 07470 ("Consultant").
The Company desires to employ Consultant on the terms and conditions set forth herein, and Consultant desires to accept such employment.
In consideration of the foregoing and of the respective covenants and agreements of the parties herein contained, the parties agree as follows:
1.1. The Company agrees to retain Consultant, and Consultant agrees to serve the Company, on the terms and conditions set forth herein for the period (the "Term") commencing on the date hereof and ending (unless sooner terminated as hereinafter set forth) on the earlier of (a) June 1, 1997 or (b) the appointment or election of a Chief Operating Officer of the Company, effective as of the date of his or her commencement of employment. Subject to the provisions of Section 6., Consultant's services shall be rendered on a non-exclusive basis. Consultant will apply all of his skill and experience to the performance of his duties in such engagement.
1.2. Consultant shall devote an average of two and one-half days per week to the performance of his duties hereunder, which shall include any time incurred by Consultant for travel outside of the Northern New Jersey area.
1.3. Consultant shall be entitled to a vacation of two weeks, with full compensation, during the Term.
1.4. The Company shall use its best efforts to cause Consultant to be elected as Vice-Chairman of the Board of Directors of the Company.
2.1. During the Term, Consultant shall act as Chief Operating Officer of the Company and render consulting services to the Company with respect to its businesses, operations and prospects, including, without limitation, to:
(a) assist the Board of Directors in the recruitment of a permanent Chief Operating Officer and the delineation of the functions to be performed by such individual.
(b) finalize and direct the implementation of the introduction of CEA-Scan in the United States and Europe and pursue other opportunities for expanding the geographic market for CEA-Scan geographic and the indications for which it can be used.
(c) develop, prioritize, obtain board acceptance of and implement a strategic plan for developing and commercializing other of the Company's products and technology and propose and consummate agreements with third parties in connection therewith.
(d) recruit a Chief Financial Officer, to report to the Chairman of the Board, Chief Executive Officer and Chief Operating Officer, delineate the functions to be performed by such individual and prioritize the tasks to be performed.
(e) recruit additional internal and external marketing and sales staff as are deemed necessary to realize the full potential for CEA-Scan, Leuko-Scan and Lympho-Scan.
(f) subject to approval by Chairman of the Board and Chief Executive Officer, propose and implement changes in organizational structure, propose and implement strategies and policies to strengthen employee loyalty and reduce turnover, and propose and implement middle and senior management performance objectives for 1997 and ensure that performance and compensation reviews are timely and professionally completed.
(g) chair regular management team meetings to ensure internal communications and to identify business needs and generally provide assistance to other management personnel.
(h) subject to time availability and other priorities of Consultant pursuant to this Agreement, undertake such other tasks and activities as may be agreed with the Chairman of the Board.
2.2. In rendering his services, Consultant shall report to, and be subject to the instructions, directions and control of, the Board of Directors, Chairman of the Board and Chief Executive Officer of the Company.
2.3. Consultant shall render his services in person at the offices of the Company and at other locations such as Consultant's home or as necessitated by the performance of Consultant's duties (subject to reasonable periods of non-availability); provided, however, that Consultant shall use his reasonable efforts to spend at least an average of two days per week at the offices of the Company in order that Consultant may perform certain of the functions presently being performed by the Chief Executive Officer of the Company thereby permitting the Chief Executive Officer to devote more time to other business activities of the Company.
3.1. During the Term, Consultant shall receive for his services hereunder a consulting fee of $17,500 per month ("Consulting Fee"), payable monthly in arrears, commencing January 1, 1997.
3.2. Subject to approval of the Board of Directors or the Compensation Committee thereof, concurrently with the execution of this Agreement, Consultant shall receive a non-qualified stock option to purchase 25,000 shares of the Company's common stock, par value $.01 per share (the "Common Stock"), pursuant to the terms of the Company's 1992 Stock Option Plan, which option (a) shall be exercisable at a price of $5-7/8 per share (the closing price of the Common Stock on December 13, 1996), (b) shall vest in four equal annual installments of 6,250 shares commencing on December 15, 1997, and (c) shall expire on December 15, 2006.
3.3. Consultant shall be entitled to reimbursement for all reasonable expenses incurred by him (and, subject to the prior approval of the Chairman of the Board of the Company, the travel expenses of Consultant's wife when accompanying Consultant on business travel) in performing services hereunder, provided that Consultant
properly accounts therefor in accordance with Company policy.
3.4. Consultant acknowledges that the compensation and stock options granted to Consultant hereunder shall be in addition to and not in lieu of any compensation or options granted or to be granted to Consultant for services as a director of the Company during the Company's fiscal year ended June 30, 1997.
4.1. This Agreement shall terminate upon the death or permanent disability of Consultant.
4.2. Either party may terminate this Agreement upon 15 days' prior notice to the other party; provided, however, that no prior notice shall be required by the Company to terminate this Agreement if Consultant (i) willfully engages in conduct adverse to the Company, (ii) is guilty of any act of gross misconduct, or (iii) commits any wrongful criminal act.
5.1. Upon termination of this Agreement, the Company shall pay Consultant his full Consulting Fee through the date of termination, and the Company shall have no other obligations to Consultant after the date of termination, but the Company shall retain all rights and remedies it may have against Consultant by reason of any breach of this Agreement by Consultant.
5.2. Termination of this Agreement by the Company or Consultant, for any reason, shall not affect in any manner Consultant's continuing obligations under Section 6.
6.1. Consultant recognizes that in his position as acting Chief Operating Officer he will be performing a highly responsible role in the very competitive biopharmaceutical industry in which trade secrets and proprietary information have extraordinary significance. Because of the damage which would accrue to the Company through his association with a competitor of the Company, due to his access to the Company's trade secrets and other proprietary information, Consultant understands that it is
important that the Company protect itself against such occurrence. Further, Consultant recognizes that the assumption of the obligations set forth herein are express conditions of his retention pursuant to this Agreement.
6.2. For the purposes of this Section 6, the "Company" shall means and includes Immunomedics, Inc. and all of its existing, past, or future parents, subsidiaries and Affiliates, and (b) "Affiliate" means a person or entity controlling, controlled by, or under common control with, the Company.
6.3. (a) During his retention as a consultant by the Company, Consultant shall not, directly or indirectly, enter into, participate in, engage in, render services to, offer or sell any products or services to, manage, operate, control, supervise, or engage in the solicitation of, any business or activity which is competitive, or proposes to be competitive, with any line of business or field of research or development activities in which the Company is engaged or proposes to engage ("Competitive Activities").
(b) During a period of one year after his retention as a consultant is terminated by the Company or by Consultant, Consultant shall not engage in any Competitive Activities; PROVIDED, HOWEVER, that such restriction shall relate only to activities competitive with any line of business or field of research or development in which the Company is engaged or proposes to engage at the time such retention ends; and PROVIDED, FURTHER, such restriction shall relate only to activities which are similar to those which Consultant performed for the Company.
(c) Consultant agrees that the covenants contained in clauses (a) and (b) shall apply:
(i) to all of his business activities, whether as an individual for his own account, as an employee, agent or consultant of or to any person or entity, as a partner or joint venturer, as a guarantor or lender, as the owner (direct or indirect) or the holder of an option to purchase an interest in, or as a director, trustee or officer of, any entity (except that he may own not more than 5% of any class of debt or equity securities of a corporation whose securities are publicly traded on a national securities exchange or on the NASDAQ system), or otherwise; and
(ii) within the continental United States, which Consultant acknowledges to be reasonable in view of his involvement with the Company as set forth herein.
(d) During his retention by the Company as a consultant by the Company, and for a period of one year after such retention is terminated by the Company or by Consultant, Consultant shall not (i) induce or attempt to induce or arrange for a third party to induce any person who has been an employee, director or agent of the Company at any time during the immediately preceding one year to discontinue their relationship with the Company, or (ii) solicit, take away, attempt to take away, or otherwise interfere with the Company's business relationship with any of its customers or suppliers.
6.4. Consultant agrees that, in the event of the termination of his retention as a consultant to the Company, he can obtain employment in business activities which are of a different or non-competing nature with his activities as a consultant to the Company; and the enforcement of a remedy hereunder by way of injunction will not prevent him from earning a reasonable livelihood. Consultant further agrees that the covenants contained herein are necessary for the protection of the Company's legitimate business interests and are reasonable in scope and content.
6.5. (a) Consultant understands that his position with the Company creates a relationship of trust and confidence between him and the Company. Consultant agrees that he will not, at any time during or after the termination of his retention as a consultant to the Company, communicate, disclose, or otherwise make available to any person or entity other than the Company (except and to the extent that such disclosure or use is necessary to carry out his duties as a consultant to the Company), or use for his account or for the benefit of any other person or entity, any information or materials proprietary to the Company that relate to the business or affairs of the Company or any client or customer of the Company, including, but not limited to, trade secrets (in all and various stages of development) processes, methods of operation, techniques, improvements, data, "know-how", marketing techniques and materials, marketing and development plans, strategies, forecasts, customer lists and other customer information (including, without limitation, current prospects, supplier lists and supplier information), price lists, pricing policies, personnel information, and financial information
and documentation and materials relating to any of the foregoing (collectively, "Proprietary Information").
(b) Notwithstanding the foregoing, Proprietary Information includes, without limitation, any and all information and materials described in the immediately preceding paragraph, whether or not obtained by Consultant with the knowledge and permission of the Company, whether or not developed, devised, or otherwise created in whole or in part by Consultant's efforts, and whether or not a matter of public knowledge unless as a result of authorized disclosure. Consultant further agrees that he will retain such knowledge and information which he acquires and develops during his retention as a consultant respecting such Proprietary Information in trust for the sole and exclusive benefit of the Company and its successors and assigns.
(c) The provisions of this Section 6.5 shall apply to Proprietary Information obtained by the Company from any third party under an agreement that includes restrictions on disclosure known (or which reasonably should have been known) to Consultant.
(d) Consultant acknowledges and agrees that Proprietary Information is of incalculable value to the Company and that the Company would suffer irreparable damage if any Proprietary Information were improperly disclosed.
6.6. Consultant understands that if he violates the provisions of this
Section 6 the Company will suffer irreparable damage for which money damages
alone could not adequately compensate the Company and for which the Company will
have no adequate remedy at law. The Company shall have the right, in addition to
any other rights it may have, (a) to obtain in any court of competent
jurisdiction (without the posting of bond or security) injunctive relief to
restrain any breach or threatened breach of, or otherwise to specifically
enforce, the provisions of this Section 6; (b) to hold Consultant liable for all
costs and expenses of the Company resulting from such breach (including, without
limitation, reasonable attorneys' fees and expenses in dealing with his breach
and/or any suits or actions with regard thereto). If Consultant shall breach the
provisions of this Section 6, the periods specified in Section 6.2 shall be
tolled until such relief is granted, and the duration of the period between such
breach and the granting of such relief shall be added to such period.
6.7. Consultant represents and warrants to the Company that Consultant has not previously assumed any obligations inconsistent with those of this Agreement.
7.1. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and understanding between the parties with respect to the employment of Consultant by the Company and supersedes all prior agreements, arrangements and understandings between the parties with respect thereto, including, without limitation, the Letter Agreement, dated as of August 6, 1996, between the Company and Consultant.
7.2. MODIFICATION. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms or covenants hereof may be waived, only by an instrument executed by the party to be charged, or in the case of a waiver, by the party waiving compliance.
7.3. WAIVER. The failure of either party at any time or times to require performance of any provision of this Agreement in no manner shall affect the right at a later time to enforce the same. No waiver by either party of a breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such breach, or a waiver of any other term or covenant contained in this Agreement.
7.4. NOTICES. All notices, authorizations, requests, reports, deliveries, consents, waivers, agreements and other communications required or permitted to be given hereunder (collectively, "Communications") shall be in writing and shall be deemed to have been duly given when (a) delivered personally with receipt acknowledged, (b) sent by facsimile, provided that a copy thereof is sent the same day by first class mail, (c) sent by overnight courier or certified mail, postage prepaid, addressed to the other party at the following address or to such other address as
either party may thereafter specify by notice to the other:
(a) If to the Company:
Immunomedics, Inc. 300 American Road Morris Plains, New Jersey 07950 Attn: Chief Executive Officer Telephone: (201) 605-8200 Facsimile: (201) 605-8282
with a copy to:
Warshaw Burstein Cohen Schlesinger & Kuh, LLP 555 Fifth Avenue New York, NY 10017 Attention: Howard M. Cohen, Esq.
Telephone: (212) 984-7700
Facsimile: (212) 972-9150
(b) If to Consultant:
Rolf H. Henel 30 Foxboro Road Wayne, New Jersey 07470 Telephone: (201) 872-2511 Facsimile: (201) 872-2511
All Communications shall be deemed received on the date delivered personally, one business day after being sent by overnight courier or by facsimile or three business days after mailing, except that a notice of change of address shall be deemed given when actually received or upon refusal to accept delivery thereof.
7.5. GOVERNING LAW. This Agreement shall be construed in accordance with and governed by the laws of the State of [New Jersey] applicable to contracts made and to be performed wholly within such state.
7.6. ASSIGNABILITY. This Agreement, and Consultant's rights and obligations hereunder, may not be assigned by Consultant. The Company may assign its rights, together with its obligations hereunder, to a successor by merger or to a purchaser of all or substantially all of its assets, and such rights and obligations shall inure to, and be binding upon, any such successor.
7.7. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, heirs, successors and permitted assigns.
7.8. ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, the making, interpretation or the breach thereof, shall be settled by arbitration in New York County, New York in accordance with the commercial rules of the American Arbitration Association which are then obtaining. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof and any party to the arbitration may, if it so elects, institute proceedings in any court having jurisdiction for the specific performance of any award. The powers of the arbitrator shall include, but not be limited to, the awarding of injunctive or other equitable relief but shall not include the power to modify or amend in any respect the provisions of this Agreement. The arbitrator shall include in any award the amount of the reasonable attorneys' fees and disbursements and expenses of the arbitration incurred by the prevailing party and a direction that it be paid by the other parties within 30 days after the making of such award. In the event that the arbitrator does not rule in favor of the prevailing party in respect of all the claims alleged by such party, the arbitrator shall include in any award the portion of the amount of the reasonable attorneys' fees and disbursements and other expenses of the arbitration incurred by the prevailing party as the arbitrator deems just and equitable under the circumstances, together with a direction that such amounts be paid by the other parties within 30 days thereof. Except as provided above, each party shall bear its own attorney's fees, disbursements and other expenses and the parties shall bear equally all other costs and expenses of the arbitration.
7.9. SURVIVAL. The covenants, agreements, representations, and warranties contained in or made pursuant to this Agreement shall survive Consultant's termination of employment, irrespective of any investigation made by or on behalf of any party.
7.10. SEVERABILITY. In case any one or more of the provisions contained in this Agreement shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision which shall be a reasonable substitute for such invalid and unenforceable
provision in light of the tenor of this Agreement, and, upon so agreeing, shall incorporate such substitute provision in this Agreement.
7.11. COUNTERPARTS. This Agreement may be executed in any number of counterparts and each such duplicate counterpart shall constitute an original, any one of which may be introduced in evidence or used for any other purpose without the production of its duplicate counterpart. Moreover, notwithstanding that any of the parties did not execute the same counterpart, each counterpart shall be deemed for all purposes to be an original, and all such counterparts shall constitute one and the same instrument, binding on all of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.
IMMUNOMEDICS, INC.
By: \s\ David M. Goldenberg
------------------------
David M. Goldenberg
Chairman of the Board and
Chief Executive Officer
|
CONSULTANT
\s\ Rolf H. Henel
---------------------------
Rolf H. Henel
|
AGREEMENT, dated this 21st day of January, 1997, by and between THE CENTER FOR MOLECULAR MEDICINE AND IMMUNOLOGY, INC., a Delaware non-profit corporation (the "Center"), and IMMUNOMEDICS, INC., a Delaware business corporation ("Immunomedics").
The Center was organized for the purposes of engaging in scientific, educational and clinical research in connection with immunodetection and treatment of cancer, funded primarily through grants and research contracts with state and federal agencies and charitable foundations. Immunomedics is a corporation which engages in research for profit and the development and marketing of commercially useful products through its own efforts and by licensing third party corporations experienced in the field. Immunomedics also intends to focus its efforts in the area of IN VIVO and IN VITRO immunological detection and treatment of cancer and other illnesses.
For good and valuable consideration, including the mutual obligations, responsibilities and promises included hereinafter and the foregoing premises, the parties hereto agree as follows:
For purposes of this Agreement:
1.1 "Candidate Technology" shall mean any development resulting from research performed by the Center and to which the Center has proprietary rights, whether exclusive or non-exclusive, which may have potential for commercialization or use in connection with other commercial development, including all information or special knowledge of the Center relating in any way to manufacture, development, or use of the Candidate Technology, including but not limited to processes, techniques, methods, products, materials and compositions..
1.2 "Patent Rights" shall mean rights under any existing or later-filed United States or foreign patent or patent application claiming all or part of the Candidate Technology.
1.3 "Affiliate" shall mean any corporation at least 51% of whose voting stock or other indicia of ownership is owned directly or indirectly by Immunomedics.
1.4 "Immunomedics Liaison" shall mean an employee of Immunomedics designated by it to be the recipient of all reports, submissions and notices from the Center relating to the subject matter of this Agreement.
1.5 "Candidate Technology Proposal" (hereinafter, "Proposal") shall mean a written proposal comprising a complete description of the Candidate Technology, including the chemical identity of relevant compositions, if known, common names and structures, and summaries of all available data known to the Center relating to chemical, pharmaceutical and toxicological properties, including the results of all tests and studies. The Proposal shall also include the particulars of any Patent Rights for the Candidate Technology. The Proposal shall include an offer of a license to Immunomedics to commercialize all or part of the Candidate Technology.
2.1 Except for research performed under a third-party agreement as set out in paragraph 2.4, whenever the Center has developed Candidate Technology, the Center shall submit a Proposal regarding said Candidate Technology to the Immunomedics Liaison. Concurrent with submission of the Proposal, the Center shall, where appropriate, provide samples of relevant compositions. Following the submission of a Proposal, the Center agrees that Immunomedics may have access to all information or special knowledge of the Center relating in any way to manufacture, development, or use of the Candidate Technology (including raw data) summarized in the Proposal, at Immunomedics' expense and at mutually agreeable times and places.
2.2 For a period of one-hundred eighty (180) days after submission by the Center of a Proposal, Immunomedics and its Affiliates shall have the first right and option to negotiate, in good faith, the terms of an exclusive or non-exclusive (as shall be determined by Immunomedics) worldwide commercialization license (with the right to sublicense) with respect to the particular Candidate Technology offered, provided that the Center will not grant Immunomedics and its Affiliates an exclusive license under this Agreement on more than twenty percent (20%) of the Proposals during any five-year term of this Agreement. Within 180 days after submission by the Center of the Proposal under paragraph 2.1, Immunomedics shall notify the Center in writing whether it or any of its Affiliates intends to exercise its option to license the Candidate Technology hereunder. During the 180-day period, the Center shall keep Immunomedics informed of ongoing research results regarding the Candidate Technology that is the object of the Proposal and said ongoing research results shall be considered a part of the Proposal without restarting the 180-day period. If such ongoing research yields a significantly different Candidate Technology, however, the Center shall resubmit a new Proposal as set out in paragraph 2.1.
2.3 If Immunomedics: (a) responds negatively to any Proposal; or (b) fails, within 180
days after receipt by Immunomedics of any Proposal under paragraph 2.1, to give the Center notice of its intent to take a license in accordance with paragraph 2.2, then the Center shall be free to exploit the Candidate Technology or a reasonably similar technology described in such Proposal, but not any other or different technology resulting from further research or development, after the end of the 180 day period in any manner it wishes without any further obligation to Immunomedics.
2.4 In the event that the Center shall receive proposals from a third party for the Center to do collaborative research, the Center shall have the right to accept such proposal and perform such research, provided that it is not directly related to Candidate Technology licensed by Immunomedics under this Agreement. Any rights to license which accrue to the Center as a result of such third party collaborative research shall remain the sole rights of the Center, anything in this Agreement to the contrary notwithstanding, except that any such rights which conflict with or in any way limit rights which Immunomedics already has under any license taken according to this Agreement shall, at Immunomedics' option, either be incorporated into existing licenses hereunder or shall not be asserted against Immunomedics.
3.1 Any non-exclusive or exclusive license granted to Immunomedics which shall result from a Proposal under paragraph 2.1 shall be commercially reasonable under the circumstances as determined at the time such license is entered into, and shall represent a fair market price for the use of the relevant technology or rights, fairly reflecting the risks incurred by Immunomedics and the costs of subsequent research and development needed to commercialize the Candidate Technology. The license will specify the licensed fields of use, breadth of exclusivity, and royalties payable by the licensee. Royalty rates will normally be based on product sales and the prevailing rates conventionally granted in the field identified in the Proposal for Candidate Technologies with reasonably similar commercial potential, based primarily on the royalties payable by unrelated third parties and Immunomedics for the same (or comparable) rights to and licenses of the same (or comparable) technology to independent third parties under similar circumstances considering all relevant facts, adjusted to account for material differences in contractual terms and economic conditions in which transactions occurred. Royalty rates will be negotiated at the time the license is entered into. Contingent royalty schemes based on, e.g. patent issuance or non-issuance, and provisions treating the stacking of royalties or packaging of other licensed Patent Rights may be provided. Any such license will reserve unto the Center the royalty-free right to use such licensed Candidate Technology for
research and academic purposes on a non-commercial basis.
3.2 The Center shall, at Immunomedics' request, enter into a separate license agreement with Immunomedics or with its Affiliates with regard to Patent Rights in any given country relating to the marketing of a particular Candidate Technology in that country. Such separate agreement will generally embody the same terms and conditions as contained in this Agreement to the extent permitted by the laws of such country and to the extent that said terms and conditions apply to the rights being licensed. Immunomedics agrees to guarantee the performance by any such Affiliate of its obligations under such separate agreement; provided that such agreement shall grant no greater rights to Immunomedics or its Affiliates than are granted to Immunomedics under this Agreement.
4.1 In consideration for the rights and options granted under Sections 2 and 3 hereof and subject to the other terms of this Agreement, Immunomedics shall pay the Center an annual license fee of Two Hundred Thousand Dollars ($200,000) for so long as this Agreement or any renewals thereof shall be in force. Such fee will be payable upon date of execution of this Agreement and upon each anniversary thereafter.
5.1 The Center shall be responsible for filing, prosecution, and maintenance fees relating to Patent Rights to each Candidate Technology it invents or discovers. Notwithstanding the foregoing, a license agreement hereunder may permit Immunomedics and its Affiliates to assume responsibility for procuring and/or maintaining certain Patent Rights at Immunomedics' and/or such Affiliates' expense.
5.2 Upon request, the Center shall promptly provide Immunomedics with copies of all papers, specifications, amendments, replies, official actions, and other documents relating to the filing, prosecution, and maintenance by the Center of Patent Rights for the Candidate Technology offered in any Proposal hereunder, subject to the obligations of confidentiality and non-use set forth in Section 9 hereof.
6.1 This Agreement shall continue in full force and effect until a date which shall be five years from the date first above written, unless sooner terminated as provided herein, provided, that if during such five-year term (i) the Center shall file a patent application or (ii) a written invention disclosure or notice of invention shall be filed by or with the Center or a principal
investigator of the Center, with respect to technology covered by this Agreement (except for technology developed under a third-party proposal as set out in paragraph 2.4 of this Agreement), then subject to the submission by the Center of a Proposal, during the five years commencing upon the date of such filing, the rights of Immunomedics under this Agreement with respect to such technology shall be as follows:
(a) The Center shall promptly after such filing submit a licensing proposal to Immunomedics with respect to such technology (which shall be deemed to be a "Proposal" under paragraph 2.1 hereof) and thereupon Immunomedics shall have the right and option set forth in paragraph 2.2 to negotiate a license of such technology, upon the terms and conditions set forth herein; and
(b) In the event a license is not entered into by the Center and Immunomedics within such 180-day period, or Immunomedics earlier notifies the Center in writing that it does not desire to obtain a license, the provisions of paragraph 2.3 shall apply.
6.2 This Agreement may be terminated by the Center if Immunomedics shall at any time become insolvent or make a general assignment for the benefit of creditors, or if a petition in bankruptcy, or insolvency, or any reorganization shall be commenced by, against, or in respect of Immunomedics and shall remain undismissed for more than 60 days.
6.3 This Agreement is terminable by Immunomedics at any time either in whole or in part, by giving 120 days' prior written notice to the Center. Obligations incurred by Immunomedics with respect to Proposals as set forth in paragraph 2.1 shall survive termination under this paragraph 8.3.
6.4 The obligations of confidentiality in Section 9 shall survive termination of this Agreement.
6.5 At least ninety (90) days and not more than one hundred eighty (180) days prior to the expiration of the initial term of this Agreement, without considering any rights set forth in clauses (a) and (b) above, Immunomedics may give to the Center written notice of its desire to renew this Agreement for an additional five-year period. In such event, the Center and Immunomedics will, during the sixty (60) days after receipt of such notice, attempt to agree in good faith upon the terms and conditions of the Agreement to be in effect during such additional five-year period. In the event that the Center and Immunomedics shall be unable to agree upon all of such terms and conditions prior to the expiration of the term of this Agreement, this Agreement shall terminate in accordance with its terms.
7.1 The Center warrants and represents that there are no outstanding written or oral agreements inconsistent with this Agreement to which the Center is a party; and that the Center is empowered to enter into this Agreement without burdens, encumbrances, restraints, or limitations of any kind which could adversely affect the rights of Immunomedics under this Agreement.
7.2 Immunomedics warrants and represents that there are no outstanding written or oral agreements inconsistent with this Agreement to which Immunomedics is a party and that Immunomedics is empowered to enter into this Agreement without burdens, encumbrances, restraints or limitations of any kind which could adversely affect the rights of the Center thereunder.
7.3 The Center warrants that at the time of submission of each Proposal hereunder and during the 180-day option period following such submission, it will disclose all patents and patent applications owned by a third party, of which it is aware, which might be infringed by the commercialization practice of the Candidate Technology which is the subject of that Proposal.
7.4 Neither Immunomedics nor the Center makes any warranties, either express or implied, other than those explicitly recited in this Section 7.
8.1 The Center shall not originate any publicity, news release, or other public announcement, written or oral, whether to the public press, or otherwise, relating to this Agreement, to any amendment hereto or to performance hereunder or the existence of an arrangement between the parties without the prior written approval of Immunomedics, which approval will not be unreasonably withheld.
8.2 Nothing contained herein will prevent the Center from making such disclosures as may be required (i) in reports or documents sent to regulatory agencies or bodies of (ii) pursuant to the requirements of applicable laws or governmental regulations, provided that, in the event any such disclosure is required, the Center will afford Immunomedics the prior opportunity to review the text of such disclosure.
9.1 Since each party will throughout the course of the performance of this Agreement obtain access to confidential and proprietary information of the other, each party will hold in
strict confidence the confidential information of the other, will not use it except for the purposes set out in this Agreement, and will treat it with the same degree of care that it exercises with regard to its own proprietary information. This obligation of confidentiality shall apply only to information designated "confidential" and disclosed in writing or (if disclosed orally) promptly confirmed in writing by notice as set out in paragraph 11.4. This obligation of confidentiality shall not prevent either party from making such disclosures to government bodies or agencies as are required by law, as for example, to obtain the permission of said government body or agency to commercialize a Candidate Technology; provided that the party making such disclosure notifies the other party in writing regarding the disclosure, including the identity of the body or agency to whom the disclosure was made and the reason therefor. None of Immunomedics' confidential or proprietary information shall be used in or be a part of any submission or proposal to a third party under Section 2 of this Agreement.
9.2 The obligation of confidentiality set out herein shall extend for a period of five years from the date on which the confidential information is received by the obligated party; provided however, that such obligations shall not apply to any information that:
(a) is or becomes publicly available through no fault of the obligated party; or
(b) the obligated party can show was in its possession prior to the furnishing of same by the furnishing party; or
(c) the obligated party independently develops or lawfully receives from a third party.
10.1 The parties hereby acknowledge that Dr. David M. Goldenberg will have overlapping responsibilities for the Center and Immunomedics. For instance, Dr. Goldenberg will presently act as the President of the Center as well as a research scientist and will also be employed by Immunomedics as Chairman of the Board of Directors.
10.2 The Center and Dr. Goldenberg hereby covenant that the decision as to whether the Center has a Candidate Technology to be presented to Immunomedics will rest solely with the Board of Trustees of the Center and that Dr. Goldenberg shall not participate in the vote on the issue when it comes before the Board of Trustees. Furthermore, Immunomedics and Dr. Goldenberg hereby covenant that the decision to exercise Immunomedics' right of first refusal or release of the Candidate Technology shall be determined solely by the majority vote of the Board of Directors of Immunomedics or a subcommittee chosen by that Board of Directors and that neither Dr. Goldenberg, nor any member of his immediate family, will participate in the
vote on the issue.
11.1 Neither Immunomedics nor the Center shall be liable for failure due to force majeure to perform its duties under this Agreement. As used in this Agreement, force majeure shall mean acts of God; acts, regulations, or laws of any government; war; civil commotion; strike, lock-out or labor disturbances; destruction of production facilities and materials by fire, earthquake or storm; failure of public utilities or common carriers; and any other causes beyond the control of that party.
11.2 Both the Center and Immunomedics agree to execute whatever further documents may be necessary to the implementation of this Agreement.
11.3 All communications, reports, payments, and notices required by this Agreement by one party to the other shall be addressed to the parties at their respective addresses set forth below or to such other address within the United States as requested by either party by notice in writing to the other:
If to Immunomedics: Immunomedics, Inc.
300 American Road
Morris Plains, NJ 07950
Attn: Chairman
With a copy to: Warshaw, Burstein, Cohen
Schlesinger & Kuh
555 Fifth Avenue
New York, NY 10022
Attn: Howard Cohen, Esq.
If to the Center: The Center for Molecular Medicine
and Immunology
520 Belleville Avenue
Belleville, NJ 07109
Attn: Vice President-Administration
With a copy to: Carpenter, Bennett & Morrissey
Three Gateway Center
100 Mulberry Street
Newark, NJ 07102
Attn: Laurence Reich, Esq.
|
All such notices, reports, payments and communications may be made personally, by first class mail, postage prepaid, by facsimile or by express courier, and shall be considered made as of the date of receipt. Such notices shall be considered made as of 48 hours from the date of deposit with the United States Post Office if sent by registered or certified mail, postage prepaid.
11.4 It is the mutual desire and intent of the parties to provide certainty as to their future rights and remedies against each other by defining the extent of their mutual undertakings as provided herein. The parties have in this agreement incorporated all representations, warranties, covenants, commitments, and understandings on which they have relied in entering into this Agreement, and, except as provided for herein, neither party makes any covenant or other commitment to the other concerning its future action. Accordingly, this Agreement may not be modified except by a notice in writing, signed by the party to be bound thereby.
11.5 This Agreement shall be binding upon and inure to the benefit of the parties hereto and any successor to substantially the entire assets and business of Immunomedics to which this Agreement relates. Neither this Agreement nor any part of it shall be assignable by the Center without the written consent of Immunomedics, which shall not be unreasonably withheld. Any assignee of Immunomedics shall receive all of Immunomedics' rights and be bound by all of Immunomedics' obligations and warranties set out in this Agreement. In the event that this Agreement is assigned in its entirety to a successor of Immunomedics under this paragraph 11.5, Immunomedics shall no longer have any obligations hereunder other than to maintain the confidentiality required by Section 9 and shall not guarantee the performance of any such assignee under this Agreement.
11.6 Any controversy or claim arising out of, or relating to this Agreement or the breach thereof, shall be settled by arbitration in New Jersey, or any other place mutually agreed to by the parties to this Agreement, in accordance with the rules then in effect at the American Arbitration Association, and judgment upon any award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof.
11.7 All matters affecting the interpretation, validity and performance of this Agreement shall be governed by the laws of the State of New Jersey, without regard for the choice of law provisions thereof.
11.8 Immunomedics and the Center acknowledge that any Candidate Technology licensed hereunder is likely to have been or to be developed, in whole or in part, with financial or other assistance from the United States of America, and that applicable statutes, regulations and Executive Orders of the United States of America, as well as published guidelines and
considerations for recipients of grants and contracts from the National Institutes of Health (NIH) and other federal departments and agencies, may control, apply or affect the right of Immunomedics to receive any Proposal, or take any license hereunder, and notwithstanding anything contained herein to the contrary, the rights and obligations of the parties under this Agreement are subject to compliance therewith to the extent controlling, applicable or affecting the rights and obligations of the parties. For instance, it may be necessary to disclose inventions to the NIH Health prior to submission of a Proposal to Immunomedics pursuant to a particular NIH grant or contract. The Center may seek Immunomedics' cooperation in submitting to NIH required utilization reports providing a status of development, first commercialization and amount of royalties received for an invention funded under an NIH grant or contract. Additionally, Immunomedics understands that the Bayh-Dole Act requires that products developed with Federal funds and used and sold in the United States, be substantially manufactured in the United States. This paragraph shall not be deemed to be a waiver by Immunomedics of any right it may have to contest with the appropriate governmental authority the validity of any statutes, regulations, Executive Orders, guidelines and considerations or their applicability to all or any part of this Agreement or any license granted pursuant to the provisions hereof.
11.9 This Agreement shall become effective on and as of the date first above written and shall supercede and replace any prior agreements and understandings between the parties as to the subject matter hereof.
IN WITNESS WHEREOF, the Center and Immunomedics have caused this Agreement to be executed by their respective representatives thereunto duly authorized as of the date first above written. The signature of Dr. David M. Goldenberg also attests to his concurrence with its terms insofar as he is personally affected thereby.
IMMUNOMEDICS, INC. THE CENTER FOR MOLECULAR
MEDICINE AND IMMUNOLOGY, INC.
By: /s/David M. Goldenberg, Sc.D., M.D. By: /s/Raymond H. Menard, Ph.D.
-------------------------------- ----------------------------
David M. Goldenberg, Sc.D., M.D. Raymond H. Menard, Ph.D.
Chairman and CEO Vice President
|
STATE OF NEW JERSEY )
) ss
COUNTY OF ESSEX )
|
On this, the 27th day of January, 1996, before me, Lois Gillespie, the undersigned officer, personally appeared RAYMOND H. MENARD and DAVID M. GOLDENBERG, known to me as the persons named as signatories of the within instrument and acknowledged that they executed the same for the purposes contained in said instrument.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Lois A. Gillespie
----------------------
Lois A. Gillespie
Notary Public
[SEAL]
|
Lois A. Gillespie A Notary Public of New Jersey My Commission Exp. Sept. 14, 1999