UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): June 29, 2017

 

Immunomedics, Inc.

(Exact Name of Registrant as Specified in Charter)

 

Delaware

 

000-12104

 

61-1009366

(State or Other Jurisdiction
of Incorporation)

 

(Commission File Number)

 

(IRS Employer Identification No.)

 

300 The American Road, Morris Plains, New Jersey

 

07950

(Address of Principal Executive Offices)

 

(Zip Code)

 

(973) 605-8200

(Registrant’s telephone number,

including area code)

 

Not applicable

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425).

 

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12).

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)).

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)).

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

 

 

 


 

Item 5.07  Submission of Matters to a Vote of Security Holders.

 

Immunomedics, Inc., a Delaware corporation (the “ Company ”) held a special meeting of its stockholders (the “ Special Meeting ”) at the Company’s headquarters, 300 The American Road, Morris Plains, New Jersey, on Thursday, June 29, 2017. At the Special Meeting, the following matter was submitted to a vote of stockholders:

 

·       The approval of the amendment and restatement of the Company’s certificate of incorporation, as amended, to increase the maximum number of authorized shares of the Company’s capital stock, all classes, from 165,000,000 shares, consisting of (i) 155,000,000 shares of common stock, $0.01 par value per share (“ Common Stock ”), and (ii) 10,000,000 shares of preferred stock, $0.01 par value per share (“ Preferred Stock ”), to 260,000,000 shares, consisting of (A) 250,000,000 shares of Common Stock, and (B) 10,000,000 shares of Preferred Stock.

 

At the close of business on June 2, 2017, the record date for the determination of stockholders entitled to vote at the Special Meeting (the “ Record Date ”), 110,297,801  shares of the Company’s Common Stock were outstanding and entitled to vote at the Special Meeting, and 1,000,000 shares of the Company’s Series A-1 Convertible Preferred Stock, $0.01 par value per share (the “ Series A-1 Convertible Preferred Stock ”) were outstanding and entitled to vote at the Special Meeting.  Each share of Common Stock outstanding as of the Record Date was entitled to one vote per share, and each share of Series A-1 Convertible Preferred Stock outstanding as of the Record Date was entitled to 23 votes per share. The holders of Common Stock and Series A-1 Convertible Preferred Stock voted together as a single class.

 

The holders of 66.21% of the shares of the Company’s Common Stock and  Series A-1 Convertible Preferred Stock (calculated together as a single class and on an as-converted basis (without regard to whether the Company has sufficient authorized but otherwise unissued or unreserved shares of Common Stock to permit such conversion)) were represented in person or by proxy at the Special Meeting, constituting a quorum.

 

With respect to the approval of the amendment and restatement of the Company’s certificate of incorporation, as amended, the votes were as follows:

 

For

 

Against

 

Abstain

86,728,547

 

1,333,480

 

175,262

 

The foregoing votes reflect that the Company’s amended and restated Certificate of Incorporation to increase the number of authorized shares of the Company’s capital stock, all classes, from 165,000,000 shares to 260,000,000 shares was approved.

 

Item 9.01.           Financial Statements and Exhibits.

 

(d)  Exhibits .

 

Exhibit
No.

 

Description

 

 

 

3.1

 

Amended and Restated Certificate of Incorporation, dated June 29, 2017.

99.1

 

Press Release of Immunomedics, Inc., dated June 29, 2017.

 

2


 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

IMMUNOMEDICS, INC.

 

 

 

 

By:

/s/ Michael R. Garone

 

Name:

Michael R. Garone

 

Title:

Vice President, Finance and Chief Financial Officer

 

 

 

 

 

 

Date: June 29, 2017

 

 

 

3

Exhibit 3.1

 

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

IMMUNOMEDICS, INC.

 

Immunomedics, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY AS FOLLOWS:

 

1. The present name of the Corporation is Immunomedics, Inc.;

 

2. The original Articles of Incorporation of the Corporation (the “Original Certificate”) were filed with the Secretary of State of the State of Delaware on July 6, 1982; the Corporation’s First Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on December 5, 2012; and the Corporations Second Amended and Restated Certificate of Incorporation (the “Second Amended and Restated Certificate”) was filed with the Secretary of State of the State of Delaware on December 3, 2014;

 

3. This Amended and Restated Certificate of Incorporation was duly adopted by written consent of the board of directors and stockholders of the Corporation in accordance with the applicable provisions of Sections 103, 228, 242 and 245 of the General Corporation Law of the State of Delaware; and

 

4. This Amended and Restated Certificate of Incorporation amends and restates the Corporation’s Second Amended and Restated Certificate in its entirety.

 

The Second Amended and Restated Certificate is hereby amended and restated to read in its entirety as follows:

 

ARTICLE I

 

The name of the Corporation is Immunomedics, Inc.

 

ARTICLE II

 

The purposes for which the Corporation is organized are to transact any or all lawful business for which corporations may be incorporated under the General Corporation Law of Delaware, and to exercise any and all powers that corporations may now or hereafter exercise under the General Corporation Law of Delaware, including, without limitation, research and development activities whereby products may be produced for marketing in conjunction with other organizations.

 

ARTICLE III

 

The duration of the Corporation shall be perpetual.

 

ARTICLE IV

 

(a) The Corporation shall be authorized to issue Two Hundred Sixty Million (260,000,000) shares, consisting of Two Hundred Fifty Million (250,000,000) shares of Common Stock, $.01 par value per share (“Common Stock”), and Ten Million (10,000,000) shares of Preferred Stock, $.01 par value per share (“Preferred Stock”).

 

(b) The Preferred Stock shall be issued from time to time in one or more series, with such distinctive serial designations as shall be stated and expressed in the resolution or resolutions providing for the issue of such shares from time to time adopted by the Board of Directors; and in such resolution or resolutions providing for the issue of shares of each particular series the Board of Directors is expressly authorized to fix the annual rate or rates for dividends for the particular series, the dividend payment dates for the particular series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend payment date shall be cumulative, the redemption price or prices for the particular series, the rights, if any, of holders of the shares of the particular series to convert the same into shares of any other series or other securities of the Corporation or of any

 

1


 

other corporation, with any provisions for the subsequent adjustment of such conversion rights, and to classify or reclassify any unissued Preferred Stock by fixing or altering from time to time any of the foregoing rights, privileges and qualifications.

 

All the Preferred Stock of any one series shall be identical with each other in all respects, except that shares of any one series issued at different times may differ as to the dates from which dividends thereon shall be cumulative; and all Preferred Stock shall be of equal rank, regardless of series, and shall be identical in all respects except as to the particulars fixed by the Board of Directors as hereinabove provided.

 

ARTICLE V

 

The stockholders of the Corporation shall have no preemptive right to acquire unissued or treasury shares of the Corporation or securities of the Corporation convertible into or carrying a right to subscribe to or acquire shares.

 

ARTICLE VI

 

The business and affairs of the Corporation shall be managed and conducted by a Board of Directors. The number of directors shall be fixed by resolution of the Board of Directors from time to time.

 

The Board of Directors of the Corporation may, from time to time, distribute to its stockholders out of capital surplus of the Corporation a portion of its assets in cash or property.

 

The Board of Directors of the Corporation, to the extent not prohibited by law, shall have the power to cause the Corporation to repurchase its own shares to the full extent of its unreserved and unrestricted capital surplus, or any other surplus, available therefor.

 

ARTICLE VII

 

The Corporation shall, to the fullest extent permitted by, and in accordance with the provisions of, the General Corporation Law of Delaware, indemnify each director or officer or employee of the Corporation against expenses (including attorneys’ fees), judgments, taxes, fines and amounts paid in settlement, incurred by him in connection with, and shall advance expenses (including attorneys’ fees) incurred by him in defending, any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) to which he is, or is threatened to be made, a party by reason of the fact that he is or was a director or officer or employee of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, employee or agent of another domestic or foreign corporation, partnership, joint venture, trust or other enterprise. Advancement of expenses shall be made upon receipt of an undertaking, with such security, if any, as the Board of Directors or stockholders may reasonably require, by or on behalf of the person seeking indemnification to repay amounts advanced if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized herein.

 

The indemnification provided for by this Article VII shall not be deemed exclusive of any other rights to which directors or officers or employees of the Corporation may be entitled under any statute, agreement, by-law or action of the Board of Directors or stockholders of the Corporation, or otherwise, and shall continue as to a person who has ceased to be a director or officer or employee of the Corporation, and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, employee or agent of another domestic or foreign corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in such capacity or arising out of his status as such, whether or not the Corporation would have the power or be obligated to indemnify him against such liability under the provisions of this Article VII need not be limited to the power of indemnification of the Corporation under the provisions of Section 145.

 

2


 

The Corporation shall indemnify each director, officer or employee of the Corporation who is, or is threatened to be made, a party to any threatened pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including actions by or in the right of the Corporation, by reason of the fact that such director, officer or employee is or was serving at the request of the Corporation as a “fiduciary” (as defined by Section 3(21)(A) of the Employee Retirement Income Security Act of 1974 (“ERISA”) with regard to any employee benefit plan adopted by the Corporation, against expenses (including attorneys’ fees) , claims, fines, judgments, taxes, causes of action or liability and amounts paid in settlement, actually and reasonably incurred by him in connection with such action or proceeding, unless such expense, claim, fine, judgment, taxes, cause of action, liability or amount arose from his gross negligence, fraud of willful breach of his fiduciary responsibilities under ERISA, except, that with respect to an action by or in the right of the Corporation, indemnification shall be made only against expenses (including attorneys’ fees).

 

The Corporation shall advance all expenses (including attorneys’ fees) incurred by any director, officer or employee in defending any such civil, criminal, administrative or investigative action, suit or proceeding pending the final disposition of such action, suit or proceeding, unless (a) the Board of Directors, by a majority vote of a quorum consisting of directors who were not or are not parties to the action, suit or proceeding concerned, or (b) the stockholders, determined that under the circumstances the person, by his conduct, is not entitled to indemnification because of his gross negligence, fraud or willful breach of his fiduciary responsibilities under ERISA. Advancement of expenses shall be made upon receipt of an undertaking, with such security, if any, as the Board of Directors or stockholders may reasonably require, by or on behalf of the director, officer or employee, to repay such amounts unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized herein.

 

ARTICLE VIII

 

The address of the initial registered office of the Corporation is 100 West Tenth Street, Wilmington, County of New Castle, Delaware 19801 and the name of the initial registered agent at such address is The Corporation Trust Company.

 

ARTICLE IX

 

A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation 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 derives any improper personal benefit. If the Delaware General Corporation Law hereafter is amended to further eliminate or limit the liability of a director, then a director of the Corporation, in addition to the circumstances in which a director is not personally liable as set forth in the preceding sentence, shall be relieved of liability to the fullest extent permitted by the Delaware General Corporation Law, as amended. Any repeal or modification of this Article IX by the stockholders of the Corporation shall not adversely affect any right of or protection afforded to a director of the Corporation existing at the time of such repeal or modification.

 

ARTICLE X

 

The Board of Directors is expressly authorized to adopt, amend or repeal the by-laws of the Corporation.

 

[Remainder of Page Intentionally Left Blank]

 

3


 

IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation, which restates and integrates and further amends the Original Certificate of the Corporation, and which has been duly adopted in accordance with Sections 103, 228, 242 and 245 of the General Corporation Law of the State of Delaware, has been duly executed by its duly authorized President and Chief Executive Officer this 29th day of June, 2017.

 

 

IMMUNOMEDICS, INC.

 

 

 

 

By:

/s/ Michael R. Garone

 

 

Name: Michael R. Garone

 

 

Title: Chief Financial Officer

 

4

Exhibit 99.1

 

NEWS RELEASE

 

300 The American Road, Morris Plains, New Jersey 07950 ¤ (973) 605-8200 ¤ Fax (973) 605-8282

 

IMMUNOMEDICS ANNOUNCES RESULTS OF SPECIAL STOCKHOLDER MEETING

 

Obtains stockholder approval to increase authorized capital stock

 

Morris Plains, N.J., June 29, 2017 — Immunomedics, Inc., (NASDAQ: IMMU) (“Immunomedics” or the “Company”) today announced that its stockholders approved an amendment and restatement of the Company’s certificate of incorporation, as amended, to increase the number of authorized shares of the Company’s capital stock, all classes, from 165,000,000 shares (consisting of 155,000,000 shares of common stock, $0.01 par value per share (the “Common Stock”), and 10,000,000 shares of preferred stock, $0.01 par value per share (the “Preferred Stock”)) to 260,000,000 shares (consisting of 250,000,000 shares of Common Stock, and 10,000,000 shares of Preferred Stock) at its Special Meeting of Stockholders held today (the “Special Meeting”). At the Special Meeting, the holders of 88,237,289 shares, or 66%, of the Company’s Common Stock and Series A-1 Convertible Preferred Stock, $0.01 par value per share, of the Company (the “Series A-1 Convertible Preferred Stock”) calculated together as a single class and on an as-converted basis, were represented in person or by proxy at the Special Meeting, constituting a quorum.

 

Of the shares voted at the Special Meeting, shares of the Company’s Common Stock and Series A-1 Convertible Preferred Stock representing 86,728,547 votes, or 98.29% of the votes, were voted in favor of the increase of the authorized capital stock as recommended by the Board of Directors.

 

About Immunomedics

 

Immunomedics is a clinical-stage biopharmaceutical company developing monoclonal antibody-based products for the targeted treatment of cancer, autoimmune disorders and other serious diseases. Immunomedics’ most advanced product candidate is IMMU-132 (sacituzumab govitecan), an antibody-drug conjugate that has received Breakthrough Therapy Designation from the FDA for the treatment of patients with triple-negative breast cancer who have failed at least two prior therapies for metastatic disease. Immunomedics’ primary goal is to bring IMMU-132 to market for the benefit of patients and the creation of shareholder value. For additional information on the Company, please visit its website at www.immunomedics.com. The information on its website does not, however, form a part of this press release.

 

Cautionary note regarding forward-looking statements

 

This release, in addition to historical information, may contain forward-looking statements made pursuant to the Private Securities Litigation Reform Act of 1995. Such statements, including statements regarding clinical trials (including the funding therefor, anticipated patient enrollment, trial outcomes, timing or associated costs), regulatory applications and related timelines, out-licensing arrangements, forecasts of future operating results, potential collaborations, and capital raising activities, timing for bringing any product candidate to market, involve significant risks and uncertainties and actual results could differ materially from those expressed or implied herein. Factors that could cause such differences include, but are not limited to, the Company’s dependence on business collaborations or availability of required

 

~ more ~

 


 

financing from capital markets, or other sources on acceptable terms, if at all, in order to further develop our products and finance our operations, new product development (including clinical trials outcome and regulatory requirements/actions), the risk that we or any of our collaborators may be unable to secure regulatory approval of and market our drug candidates, risks associated with the outcome of pending litigation and competitive risks to marketed products, and the Company’s ability to repay its outstanding indebtedness, if and when required, as well as the risks discussed in the Company’s filings with the Securities and Exchange Commission. The Company is not under any obligation, and the Company expressly disclaims any obligation, to update or alter any forward-looking statements, whether as a result of new information, future events or otherwise.

 

For More Information:

Dr. Chau Cheng

Senior Director, Investor Relations & Corporate Secretary

(973) 605-8200, extension 123

ccheng@immunomedics.com

 

Media/Investor Contact:

Dan Zacchei / Jaimee Pavia

Sloane & Company

212-486-9500

Dzacchei@sloanepr.com

Jpavia@sloanepr.com