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Item 1.01.
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Entry into a Material Definitive Agreement.
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On September 13, 2020, Gilead Sciences,
Inc., a Delaware corporation (“Parent” or “Gilead”), entered into an Agreement and Plan of
Merger (the “Merger Agreement”), among Parent, Immunomedics, Inc., a Delaware corporation (“Immunomedics”),
and Maui Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Purchaser”).
Pursuant to the Merger Agreement, and upon
the terms and subject to the conditions thereof, Purchaser will commence a tender offer (the “Offer”), to purchase
all of the issued and outstanding shares (the “Shares”) of common stock, par value $0.01 per share, of Immunomedics,
other than any Shares held immediately prior to the effective time of the Merger by Immunomedics (or held in Immunomedics’
treasury) and any Shares held immediately prior to the effective time of the Merger by Parent, Purchaser or any other direct or
indirect wholly owned subsidiary of Parent at a price of $88.00 per Share (the “Offer Price”), net to the seller
in cash, without interest and subject to any required withholding of taxes.
The Offer will initially remain open for
a minimum of 20 business days from the date of commencement of the Offer. If at the scheduled expiration time of the Offer any
of the conditions to the Offer have not been satisfied (unless such condition is waivable by Purchaser or Parent and has been waived),
Purchaser will, and Parent will cause Purchaser to, extend the Offer to permit the satisfaction of all Offer conditions.
The obligation of Purchaser to
consummate the Offer is subject to the satisfaction or waiver of customary conditions, including, among others, (i) there
being validly tendered and not validly withdrawn prior to the expiration of the Offer a number of Shares that, considered
together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one more Share than 50% of
the total number of Shares outstanding at the expiration of the Offer, (ii) the expiration or termination of the waiting
period applicable to the Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the “HSR Act”), (iii) the absence of any law or order
prohibiting the consummation of the Offer or the Merger in any jurisdiction in which Parent or Immunomedics has material
business operations and (iv) other customary conditions set forth in Annex I to the Merger Agreement.
Following the consummation of the Offer
and subject to the terms and conditions of the Merger Agreement, Purchaser will merge with and into Immunomedics pursuant to Section
251(h) of the General Corporation Law of the State of Delaware (the “DGCL”), with Immunomedics being the surviving
corporation (the “Merger”). At the effective time of the Merger, each Share (other than (i) Shares held by Immunomedics
(or held in Immunomedics’ treasury), (ii) Shares held by Parent, Purchaser, or any other direct or indirect wholly owned
subsidiary of Parent and (iii) Shares held by stockholders who have properly exercised and perfected their demands for appraisal
of such Shares in accordance with the DGCL and have neither withdrawn nor lost such rights prior to the effective time of the Merger)
will be converted into the right to receive an amount in cash equal to the Offer Price, without interest and subject to any required
withholding of taxes.
The Merger Agreement includes customary
representations, warranties and covenants of Immunomedics, Parent and Purchaser.
Immunomedics has agreed to customary “no-shop”
restrictions on its ability to solicit alternative acquisition proposals from third parties and engage in discussions or negotiations
with third parties regarding alternative acquisition proposals. Notwithstanding these restrictions, Immunomedics may under certain
circumstances provide information to and participate in discussions or negotiations with third parties with respect to a bona fide
written alternative acquisition proposal that the board of directors of Immunomedics has determined constitutes or would reasonably
be expected to result in a Superior Offer (as defined in the Merger Agreement), if failing to do so would be inconsistent with
the board’s fiduciary duties under applicable law.
The Merger Agreement also provides that,
in connection with the termination of the Merger Agreement under specified circumstances, including termination by Immunomedics
to accept and enter into an agreement with respect to a Superior Offer (as defined in the Merger Agreement), Immunomedics will
pay Parent a termination fee of approximately $732.1 million.
The foregoing description of the
Merger Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety
by reference to the Merger Agreement, which is filed as Exhibit 2.1 hereto and which is incorporated herein by reference. The
Merger Agreement has been filed to provide information to investors regarding its terms. It is not intended to provide any
other factual information about Parent, Purchaser or Immunomedics, their respective businesses, or the actual conduct of
their respective businesses during the period prior to the consummation of the Offer, the Merger or the other transactions
contemplated by the Merger Agreement. The Merger Agreement and this summary should not be relied upon as disclosure about
Parent or Immunomedics. None of Immunomedics’ stockholders or any other third parties should rely on the
representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or
conditions of Parent, Purchaser, Immunomedics or any of their respective subsidiaries or affiliates. The Merger Agreement
contains representations and warranties that are the product of negotiations among the parties thereto and that the parties
made to, and solely for the benefit of, each other as of specified dates. The assertions embodied in those representations
and warranties are subject to qualifications and limitations agreed to by the respective parties and are also qualified in
important part by confidential disclosure schedules delivered in connection with the signing of the Merger Agreement. The
representations and warranties (i) may have been made for the purpose of allocating contractual risk between the parties to
the Merger Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to
the contracting parties that differ from what an investor may view as material and (ii) may have been made only as of the date of the Merger Agreement or as of another date or dates as may be specified in the Merger Agreement, and information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the public disclosures of Immunomedics or Parent, if at all.