EXHIBIT 4.4
WAIVER AGREEMENT
This Waiver Agreement (this "Waiver") is made and entered into as of
October 11, 1999, by and among Immunomedics, Inc., a Delaware corporation (the
"Company"), and the undersigned buyers (the "Buyers").
RECITAL
WHEREAS, under Section 3(b) of the Company's Amended
Certificate of Designations, Preferences and Rights of the Series F Convertible
Preferred Stock, as filed with the Secretary of State of the State of Delaware
on December 9, 1998 (the "Certificate of Designations"), the Buyers, as holders
of shares of the Company's Series F Convertible Preferred Stock (the "Preferred
Shares") have the right to require the Company to redeem all or any portion of
the Preferred Shares upon the occurrence of certain events, including if the
Registration Statement (as defined in the Certificate of Designations) is
unavailable to the holders of the Preferred Shares for sale of the Registrable
Securities (as defined in the Certificate of Designations) in accordance with
the terms of the Registration Rights Agreement, by and among the Company and the
Buyers, dated December 9, 1998 (the "Registration Rights Agreement") (such
occurrence for redemption, a "Registration Default").
WHEREAS, under Section 2(g) of the Registration Rights
Agreement, the Company is subject to certain cash penalties upon the occurrence
of a Registration Default.
NOW, THEREFORE, in consideration of the mutual promises
contained herein:
1. Waiver.
1.1 Each of the Buyers hereby waives its right
to require redemption of its Preferred Shares under Section 3(b) of the
Certificate of Designations as a result of the Registration Default which is
currently existing and which continues so long as the following proviso remains
true, provided that the Company shall (i) file a new Registration Statement with
the Securities and Exchange Commission (the "SEC") on or before November 11,
1999, which Registration Statement shall register for resale that number of
shares of the Company's Common Stock, par value $0.01per share (the "Common
Stock"), equal to the product of (x) 2.0 and (y) the number of Registrable
Securities as of the date immediately preceding the date such Registration
Statement is filed with the SEC, less that number of shares of Common Stock
which, as of the date immediately preceding the filing of such Registration
Statement, are currently registered on Registration Statements for the resale of
shares of Common Stock by the Buyers and (ii) use its best efforts to have such
Registration Statement declared effective by the SEC on or before December 11,
1999 or, if not achieved by such date, until such date as such Registration
Statement is declared effective, provided that the Company continues to use its
best efforts to have such Registration Statement declared effective by the SEC.
1.2 Each of the Buyers hereby waives its right
to receive the Registration Delay Payments (as defined in the Registration
Rights Agreement) that are currently due and any Registration Delay Payments
that shall accrue due to the Registration Default currently existing as of the
date hereof, provided that the Company shall (i) file a new Registration
Statement with the SEC on or before November 11, 1999, which Registration
Statement shall register for resale that number of shares of Common Stock equal
to the product of (x) 2.0 and (y) the number of Registrable Securities as of the
date immediately preceding the date such Registration Statement is filed with
the SEC, less that number of shares of Common Stock which, as of the date
immediately preceding the filing of such Registration Statement, are currently
registered on Registration Statements for the resale of shares of Common Stock
by the Buyers and (ii) have such Registration Statement declared effective by
the SEC on or before December 11, 1999.
1.3 If (i) a new Registration Statement is not
filed with the SEC on or before November 11, 1999, registering for resale that
number of shares of Common Stock equal to the product of (x) 2.0 and (y) the
number of Registrable Securities as of the date immediately preceding the date
such Registration Statement is filed with the SEC, less that number of shares of
Common Stock which, as of the
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date immediately preceding the filing of such Registration Statement, are
currently registered on Registration Statements for the resale of shares of
Common Stock by the Buyers or (ii) such new Registration Statement is not
declared effective by the SEC on or before December 11, 1999, then:
1.3.1 None of the Buyers' waivers of their
rights to receive Registration Delay Payments shall be
effective and such Registration Delay Payments shall be deemed
to have accrued from the date of the Registration Default; and
1.3.2 None of the Buyers waivers of their
rights of redemption in the event of a Registration Default
shall be effective and such Buyers shall be entitled to
exercise their right of Redemption under Sections 3(b) and
3(f) of the Certificate of Designations, provided, however, if
the Company shall have satisfied the conditions of Section
1.1, then the waiver of the Buyers' right of redemption shall
remain in effect except that an Excluded Redemption Event (as
defined in the Certificate of Designations) pursuant to
Section 3(h)(ii) of the Certificate of Designations shall be
deemed to have occurred, the Company shall be deemed to have
delivered a Company's Excluded Redemption Event Notice on
December 12, 1999 with respect to such events pursuant to
Section 3(h) of the Certificate of Designations and the Buyers
shall be entitled to exercise their rights under Sections 3(h)
and 3(i) of the Certificate of Designations accordingly.
1.4 Provided that the Company shall (i) file a
new Registration Statement with the SEC on or before November 11, 1999, which
Registration Statement shall register for resale that number of shares of Common
Stock equal to the product of (x) 2.0 and (y) the number of Registrable
Securities as of the date immediately preceding the date such Registration
Statement is filed with the SEC, less that number of shares of Common Stock
which, as of the date immediately preceding the filing of such Registration
Statement, are currently registered on Registration Statements for the resale of
shares of Common Stock by the Buyers and (ii) use its best efforts to have such
Registration Statement declared effective by the SEC on or before December 11,
1999, then (A) the Company shall be deemed not to have breached either the
Registration Rights Agreement or the Certificate of Designations due to the
Registration Default currently existing as of the date hereof and which may
continue until such time as the Company fails to use its best efforts to have
such Registration Statement declared effective by the SEC on or before December
11, 1999 or, if not achieved by such date, until such date as such Registration
Statement is declared effective, provided that the Company continues to use its
best efforts to have such Registration Statement declared effective by the SEC
and (B) a Triggering Event (as defined in the Certificate of Designations) shall
be deemed not to have occurred due to the Registration Default currently in
existence as of the date hereof and which may continue until such time as the
Company fails to use its best efforts to have such Registration Statement
declared effective by the SEC on or before December 11, 1999 or, if not achieved
by such date, until such date as such Registration Statement is declared
effective, provided that the Company continues to use its best efforts to have
such Registration Statement declared effective by the SEC.
2. Miscellaneous.
2.1 Other Provisions. All other provisions of the Certificate
of Designations and the Registration Rights Agreement shall remain in full force
and effect.
2.2 Counterparts. This Waiver may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
* * * * * * *
IN WITNESS WHEREOF, the parties have caused this Waiver to be duly
executed as of the day and year first written above.
COMPANY: BUYERS:
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IMMUNOMEDICS, INC. [Name of Buyer]
By:______________________ By:__________________________
Name: Xxxxx X. Xxxxxxxxxx Name:
Its: Chairman of the Board and Chief Its:
Executive Officer
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