Exhibit 10.24
AGREEMENT
This Agreement (the "AGREEMENT") is made and entered into as of March 31,
2006, among ImaRx Therapeutics, Inc., a Delaware corporation (the "COMPANY"),
Xxxxx Xxxxx Healthcare Ventures, Inc., a Delaware corporation ("EMHV"), and Xxxx
X. Xxxxx ("XXXXX", together with the Company and EMHV, the "PARTIES").
WHEREAS, EMHV has previously performed financial consulting services for
the Company without receiving compensation (the "PAST CONSULTING SERVICES");
WHEREAS, the Company deems it in the best interests of the Company and its
stockholders to engage EMHV to perform various financial consulting services, on
an as-needed basis (up to a maximum of 5 hours per month), for a period of two
(2) years after the date hereof (the "FUTURE CONSULTING SERVICES," together with
the Past Consulting Services, the "CONSULTING SERVICES");
WHEREAS, EMHV desires to perform ongoing financial consulting services for
the Company;
WHEREAS, the Company desires to offer and sell (such issuance, the "SERIES
F FINANCING"), for aggregate gross proceeds of up to $25,000,000, shares of the
Company's newly designated Series F Preferred Stock ("SERIES F PREFERRED"),
having an aggregate liquidation preference of up to $25,000,000 which shall be
senior to the Company's Series B Preferred Stock and Series C Preferred Stock
and shall have the terms set forth in the Restated Certificate (as defined
below);
WHEREAS, the Company desires to amend and restate the Company's Third
Amended and Restated Certificate of Incorporation, as amended (the "CURRENT
CERTIFICATE"), to authorize and designate the Series F Preferred and to amend
certain provisions relating to the Board of Directors, as set forth in the
attached Fourth Amended and Restated Certificate of Incorporation (the "RESTATED
CERTIFICATE");
WHEREAS, Sections 4(B)(3)(c) and 4(B)(3)(d) of each of the Current
Certificate and the Restated Certificate provide that the Company shall not
without first obtaining the approval of the holders of a majority of the then
outstanding shares of Series B Preferred Stock and the Series C Preferred Stock
(i) amend its Certificate of Incorporation so as to affect adversely the shares
of Series B Preferred Stock or Series C Preferred Stock or any holder thereof
(including by creating any additional classes or series of preferred stock with
a liquidation preference dividend or other rights senior or pari passu to the
Series B Preferred Stock or the Series C Preferred Stock); or (ii) change the
rights of the holders of Series B Preferred Stock or Series C Preferred Stock in
any other respect (collectively, the "PROTECTIVE PROVISIONS").
WHEREAS, EMHV desires to facilitate the consummation of the Series F
Financing;
WHEREAS, Xxxxx has a fifty percent (50%) ownership interest in EMHV;
WHEREAS, Xxxxx has served on the Company's Board of Directors since
September 30, 2002 and wishes to resign from such position;
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WHEREAS, pursuant to an Executive Employment Agreement (the "EMPLOYMENT
AGREEMENT"), dated as of February 18, 2004 by and between Xxxxx and the Company,
Xxxxx was granted 250,000 options to purchase the Company's common stock (the
"OPTIONS"), all of which options are fully vested as of the date hereof; and
WHEREAS, Xxxxx'x Employment Agreement terminated on February 18, 2006.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
conditions set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
AGREEMENTS PERTAINING TO EMHV
EMHV CONSULTING AGREEMENT
1. The Company shall pay to EMHV (i) Two Hundred Fifty Thousand Dollars
(US$250,000) as compensation for the Consulting Services and (ii) in the case
that the gross proceeds from the issuance of all shares of Series F Preferred
issued by the Company exceeds Twenty-Five Million Dollars (US$25,000,000), an
additional Fifty Thousand Dollars (US$50,000), which amounts are acknowledged,
by EMHV to be fair and reasonable consideration for rendering of the Consulting
Services, and shall not be subject to offset, recoupment or refund for any
reason. Payment of the initial US$250,000 shall be made within one (1) business
day of the date hereof and the subsequent US$50,000, if applicable, shall be
made within one (1) business day of the date upon which the proceeds received by
the Company from the issuance of all shares of Series F Preferred issued by the
Company exceeds US$25,000,000. All such payments shall be paid, by wire
transfer, to the wire transfer instructions attached hereto, unless written
notice containing other payment instructions is provided by EMHV.
WAIVER OF PROTECTIVE PROVISIONS
2. EMHV does hereby irrevocably approve and consent to the issuance by the
Company of the Series F Preferred.
NON-DISPARAGEMENT
3. The Company and EMHV covenant and agree that neither will make any
voluntary statements, written or oral, or cause or encourage others to make any
such statements that defame, disparage or in any way criticize the personal
and/or business reputations, practices or conduct of the other.
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MATERIAL NON-PUBLIC INFORMATION
4. Without the prior written consent of EMHV, the Company shall not, at any
time after the date upon which any class of the Company stock is traded upon any
national stock exchange or quoted on NASDAQ, provide any material non-public
information concerning the Company to EMHV and/or any of its shareholders,
members, officers, directors or employees in the course of EMHV performing the
Consulting Services or otherwise.
AGREEMENTS PERTAINING TO XXXX XXXXX
RESIGNATION FROM BOARD
1. As of the date hereof, Xxxxx hereby resigns any and all positions he
holds as a director of the Company.
EXTENSION OF OPTION EXERCISE PERIOD
2. Notwithstanding anything in the Employment Agreement or agreement
evidencing the Options to the contrary, (i) all options granted to Xxxxx by the
Company are fully vested and exercisable as of the date hereof, and (ii) if not
otherwise exercised, the Options shall terminate on date that is ninety (90)
days following the second anniversary of the date hereof.
NON-DISPARAGEMENT
3. The Company and Xxxxx covenant and agree that neither will make any
voluntary statements, written or oral, or cause or encourage others to make any
such statements that defame, disparage or in any way criticize the personal
and/or business reputations, practices or conduct of the other.
MATERIAL NON-PUBLIC INFORMATION
4. Without the prior written consent of Xxxxx, the Company shall not, at
any time after the date upon which any class of the Company stock is traded upon
any national stock exchange or quoted on NASDAQ, provide any material non-public
information concerning the Company to Xxxxx in the course of the Xxxxx
performing any Consulting Services or otherwise
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
day and year first above written.
IMARX THERAPEUTICS, INC.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, M.D.
Chief Executive Officer
XXXXX XXXXX HEALTH CARE VENTURES, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
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