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Form DEFA14A IMMUNOMEDICS INC

November 28, 2016 7:17 AM EST

 

 

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): November 27, 2016

 

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 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).

 

x          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)).

 

 

 



 

Item 5.03                   Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

Effective November 27, 2016, the Board of Directors of Immunomedics, Inc., a Delaware corporation (the “Company”), approved the amendment to the Company’s Second Amended and Restated By-Laws (the “Amendment”).  The Amendment is effective immediately and amends Section 2.5 of the Second Amended and Restated By-Laws to provide that, in the event that a stockholder or stockholders seek to act by written consent, then (a) the stockholder of record seeking to have the stockholders authorize or take corporate action by consent shall, by written notice to the Secretary, request the Board of Directors to fix a record date, and the Board of Directors shall timely adopt a resolution fixing the record date (unless a record date has previously been fixed by the Board pursuant to the first sentence of Section 2.5.1 thereof), (b) the Company shall engage independent inspectors of elections for the purpose of performing promptly a ministerial review of the validity of the consents and revocations, (c) for the purpose of permitting the inspectors to perform such review, no action of the stockholders by written consent and without a meeting shall be effective until such inspectors have completed their review, determined that the requisite number of valid and unrevoked consents have been obtained to authorize or take the action specified in the consents, and certified such determination, (d) provide that nothing contained in this new provision shall in any way be construed to suggest or imply that the Board of Directors or any stockholder shall not be entitled to contest the validity of any consent or revocation thereof, whether before or after such certification by the independent inspectors, or to take any other action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto, and the seeking of injunctive relief in such litigation), and (e) provide that every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days after the earliest dated written consent received a valid written consent or valid written consents signed by a sufficient number of stockholders to take such action are delivered to the Company in the manner prescribed in Section 2.5.3 and applicable law, and not revoked.

 

A copy of the Amendment is filed as Exhibit 3.1 to this Form 8-K and is incorporated herein by reference.

 

Item 8.01                   Other Events.

 

On November 28, 2016, the Company issued a press release announcing the postponement of the 2016 Annual Meeting of Stockholders.  The full text of the press release is attached to this current report on Form 8-K as Exhibit 99.1 hereto and is incorporated by reference herein.

 

Item 9.01                   Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit
No.

 

Description

 

 

 

  3.1

 

Amendment to Second Amended and Restated By-Laws of Immunomedics, Inc.

 

 

 

99.1

 

Press Release of Immunomedics, Inc., dated November 28, 2016

 

2



 

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 hereunto duly authorized.

 

 

IMMUNOMEDICS, INC.

 

 

 

 

 

 

 

By:

/s/ Michael R. Garone

 

 

Name:

Michael R. Garone

 

 

Title:

Vice President, Finance and Chief Financial Officer

 

 

 

Date: November 28, 2016

 

 

 

3


Exhibit 3.1

 

FIRST AMENDMENT

TO THE

SECOND AMENDED AND RESTATED BY-LAWS

OF

IMMUNOMEDICS, INC.

 

November 27, 2016

 

This First Amendment (this “Amendment”) to the Second Amended and Restated By-Laws (the “By-Laws”) of Immunomedics, Inc., a Delaware corporation (the “Corporation”), is adopted as of November 27, 2016 (the “Effective Date”), by the Board of Directors of the Corporation (the “Board”).

 

WHEREAS, the affairs of the Corporation are governed by the By-Laws; and

 

WHEREAS, in accordance with Article 13 of the By-Laws, the Board has unanimously approved this Amendment in order to amend the procedural requirements with respect to stockholder actions by written consent.

 

NOW, THEREFORE, the Board hereby adopts the following amendments:

 

1.                                      Capitalized Terms.  Except as otherwise specifically set forth in this Amendment, all capitalized terms used herein shall have the meanings given such terms in the By-Laws.

 

2.                                      Amendments.

 

Section 2.5 of the By-Laws is hereby amended and restated as follows:

 

“2.5.1  In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, subject to applicable law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting.  If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.  A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

 

2.5.2  In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of

 



 

stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

 

2.5.3  (a) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting (including by telegram, cablegram or other electronic transmission as permitted by law), the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board. Any stockholder of record seeking to have the stockholders authorize or take corporate action by consent shall, by written notice to the Secretary, request the Board to fix a record date. The Board shall timely adopt a resolution fixing the record date (unless a record date has previously been fixed by the Board pursuant to the first sentence of Section 2.5.1).

 

(b)  In the event of the delivery, in the manner provided by this Section 2.5.3 and applicable law, to the Corporation of written consent or consents of the stockholders to take corporate action and/or any related revocation or revocations, the Corporation shall engage independent inspectors of elections for the purpose of performing promptly a ministerial review of the validity of the consents and revocations. For the purpose of permitting the inspectors to perform such review, no action of the stockholders by written consent and without a meeting shall be effective until such inspectors have completed their review, determined that the requisite number of valid and unrevoked consents delivered to the Corporation in accordance with this Section 2.5.3 and applicable law have been obtained to authorize or take the action specified in the consents, and certified such determination for entry in the records of the Corporation kept for the purpose of recording the proceedings of meetings of stockholders. Nothing contained in this Section 2.5.3(b) shall in any way be construed to suggest or imply that the Board or any stockholder shall not be entitled to contest the validity of any consent or revocation thereof, whether before or after such certification by the independent inspectors, or to take any other action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto, and the seeking of injunctive relief in such litigation).

 

(c)  Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days after the earliest dated written consent received in accordance with this Section 2.5.3, a valid written consent or valid written consents signed by a sufficient number of stockholders to take such action are delivered to the Corporation in the manner prescribed in this Section 2.5.3 and applicable law, and not revoked.”

 

3.                                      Confirmation of By-Laws.  Except as set forth herein, the terms and provisions of the By-Laws are hereby confirmed, ratified and approved in their entirety, and shall continue in full force and effect.

 



 

4.                                      Effective Date.  Each provision of this Amendment shall be effective as of the Effective Date.

 

5.                                      Governing Law.  The laws of the State of Delaware shall govern the validity of this Amendment, the construction of its terms, and the interpretation of the rights and duties of the Board, without regard to the principles of conflicts of laws.

 


Exhibit 99.1

 

Immunomedics Postpones 2016 Annual Meeting of Stockholders

 

Morris Plains, NJ, November 28, 2016 — Immunomedics, Inc. (NASDAQ: IMMU) (“Immunomedics” or “the Company”) today announced that, after careful consideration and in light of venBio Select Advisors LLC’s (“venBio”) recently nominated slate of four director candidates to the Company’s five-member Board, the Board of Directors has determined that the postponement of the Company’s 2016 Annual Meeting of Stockholders for a short period is necessary and in the best interest of its stockholders.

 

The Board believes that before voting at the Company’s 2016 Annual Meeting, it is important that stockholders have the opportunity to consider the Company’s progress toward achieving a number of critical near-term milestones, including:

 

·                  Completing the enrollment of 100 triple-negative breast cancer (TNBC) patients into the ongoing Phase 2 clinical trial of IMMU-132 by year-end 2016;

·                  Beginning the confirmatory Phase 3 clinical trial of IMMU-132;

·                  Submitting a Biological License Application (BLA) to the FDA for accelerated approval for IMMU-132 for patients with metastatic TNBC in mid-2017;

·                  Presenting three abstracts, including an update on Phase 2 clinical results of IMMU-132 in TNBC patients as well as preclinical results in regards to the Company’s immuno-oncology technology, at the San Antonio Breast Cancer Symposium in December 2016; and

·                  Executing on licensing and other strategic activities with regard to IMMU-132 and other clinical and preclinical pipeline drug development candidates as well as platform technologies with the support of Greenhill & Co. as its financial advisor.

 

Additionally, the Board believes that engaging in a proxy contest at this time could potentially destroy stockholder value by disrupting the Company’s strategy and ability to achieve these milestones.

 

During this period, the Board expects to complete its work with a leading search firm to identify additional highly qualified, experienced, independent candidates for appointment to the Board. The Board also remains open to continuing to engage with venBio and to work toward reaching a mutually agreeable resolution that is in the best interest of all stockholders.

 

The Company will hold its Annual Meeting on February 16, 2017. The Annual Meeting was originally scheduled to be held on December 14, 2016. Immunomedics will notify stockholders of the new record date and will send new proxy materials in due course.

 

The Company also announced that the Board of Directors has approved an amendment to Section 2.5 of its Second Amended and Restated By-Laws, dated August 23, 2007, providing that certain procedural requirements must be adhered to with respect to stockholder actions by written consent; specifically, the Board may fix the record date for any such determination of stockholders and such determination shall be made in a timely manner following the receipt of such a request from a stockholder.

 

DLA Piper LLP (US) is serving as legal advisor and Greenhill & Co. is serving as financial advisor to Immunomedics.

 

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’ advanced proprietary technologies allow the Company to create humanized antibodies that can be used either alone in unlabeled or “naked” form, or conjugated with radioactive isotopes, chemotherapeutics, cytokines or toxins. Using these technologies, Immunomedics has built a pipeline of eight clinical-stage product candidates. Immunomedics’ portfolio of investigational products includes antibody-drug conjugates (ADCs) that are designed to deliver a specific payload of a chemotherapeutic directly to the tumor while reducing overall toxic effects that are usually found with conventional

 



 

administration of these chemotherapeutic agents. Immunomedics’ most advanced ADCs are sacituzumab govitecan (IMMU-132) and labetuzumab govitecan (IMMU-130), which are in Phase 2 trials for a number of solid tumors and metastatic colorectal cancer, respectively. IMMU-132 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 has a research collaboration with Bayer to study epratuzumab as a thorium-227-labeled antibody. Immunomedics has other ongoing collaborations in oncology with independent cancer study groups. The IntreALL Inter-European study group is conducting a large, randomized Phase 3 trial combining epratuzumab with chemotherapy in children with relapsed acute lymphoblastic leukemia at clinical sites in Australia, Europe, and Israel. Immunomedics also has a number of other product candidates that target solid tumors and hematologic malignancies, as well as other diseases, in various stages of clinical and preclinical development. These include combination therapies involving its antibody-drug conjugates, bispecific antibodies targeting cancers and infectious diseases as T-cell redirecting immunotherapies, as well as bispecific antibodies for next-generation cancer and autoimmune disease therapies, created using its patented DOCK-AND-LOCK® protein conjugation technology. The Company believes that its portfolio of intellectual property, which includes approximately 301 active patents in the United States and more than 400 foreign patents, protects its product candidates and technologies. 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.

 

Important Additional Information

 

Immunomedics, Inc. (the “Company”), its directors and certain of its executive officers may be deemed to be participants in the solicitation of proxies from Company stockholders in connection with the matters to be considered at the Company’s 2016 Annual Meeting. The Company has filed a definitive proxy statement and form of WHITE proxy card with the U.S. Securities and Exchange Commission (the “SEC”) in connection with any such solicitation of proxies from Company stockholders. COMPANY STOCKHOLDERS ARE STRONGLY ENCOURAGED TO READ THE DEFINITIVE PROXY STATEMENT (INCLUDING ANY AMENDMENTS AND SUPPLEMENTS), THE ACCOMPANYING WHITE PROXY CARD AND ANY OTHER RELEVANT DOCUMENTS THAT THE COMPANY FILES WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Information regarding the identity of potential participants, and their direct or indirect interests, by security holdings or otherwise, is set forth in the proxy statement and other materials filed by the Company with the SEC.  Stockholders will be able to obtain the proxy statement, any amendments or supplements to the proxy statement and other documents filed by the Company with the SEC for no charge at the SEC’s website at www.sec.gov. Copies will also be available at no charge at the Company’s website at www.immunomedics.com, by writing to Immunomedics, Inc. at 300 The American Road, Morris Plains, New Jersey 07950, or by calling the Company’s proxy solicitor, or by calling Dr. Chau Cheng, Senior Director, Investor Relations & Corporate Secretary, (973) 605-8200, extension 123.

 

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 (including the timing and amount of contingent payments), forecasts of future operating results, potential collaborations, and capital raising activities, 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 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

[email protected]

 

Media

 

Dan Katcher / Ed Trissel / Nick Lamplough

Joele Frank, Wilkinson Brimmer Katcher

(212) 355-4449

 

Investors

 

Dan Burch/Bob Marese

MacKenzie Partners, Inc.

(212) 929-5500

 




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