EXHIBIT 9.2
AGREEMENT, dated as of March 30, 2004 (this "Agreement"), by and among IMARX
THERAPEUTICS, INC., a Delaware corporation (the "Company") and XXXXX XXXXX
Healthcare Ventures, Inc., a Delaware corporation ("EMHV").
INTRODUCTION
EMHV holds (i) 593,226 shares (the "Series B Shares") of the Series B
Preferred Stock, par value $0.0001 per share, of the Company (the "Series B
Preferred Stock"), which constitutes all of the issued and outstanding shares of
the Series B Preferred Stock and (ii) 285,714 shares of the Series C Preferred
Stock, par value $0.0001 per share, of the Company (the "Series C Preferred
Stock"), which constitutes all of the issued and outstanding shares of the
Series C Preferred Stock.
As set forth in the Second Amended and Restated Certificate of
Incorporation of the Company (the "Certificate"), (i) holders of shares of
Series B Preferred Stock are entitled to receive a mandatory dividend per share
equal to seven percent (7%) per annum of the original issue price of the Series
B Preferred Stock, (ii) the original issue price of the Series B Preferred Stock
is $16.00 per share, (iii) the mandatory dividends are payable by the Company by
the issuance of additional shares of Series B Preferred Stock, and (iv) the
Series B Shares are currently convertible into shares of common stock, par value
$0.0001 per share, of the Company (the "Common Stock"), at a conversion price of
$16.00 per share, subject to any adjustments resulting from events occurring
since the original issuance of the Series B Preferred Stock and any future
events, in each case, as set forth in the Certificate (the "Series B Conversion
Price").
The Company desires to have EMHV (i) waive (a) its right to the payment of
dividends that have accrued on the Series B Shares and have not yet been paid to
EMHV and (b) its right to the accrual on or payment of any future dividends on
the Series B Shares (collectively, the "Dividend Rights") and (ii) agree that,
upon an Optional Conversion of the Series B Preferred Stock under Section
5(b)(i) of Article IV.B of the Certificate or of the Series C Preferred Stock
under Section 5(c)(i) of Article IV.B of the Certificate, or a Required
Conversion of the Series B Preferred Stock under Section 5(b)(ii) of Article
IV.B of the Certificate or of the Series C Preferred Stock under Section
5(c)(ii) of Article IV.B of the Certificate, all shares of Series B Preferred
Stock and Series C Preferred Stock will convert into Common Stock as set forth
in the Third Amended and Restated Certificate of Incorporation of the Company in
the form attached hereto as Exhibit A (the "Restated Charter"), and, in exchange
therefore, the Company has agreed to decrease the Series B Conversion Price of
the Series B Preferred Stock to $9.17 per share and of the Series C Preferred
Stock to $6.76 per share, subject to adjustment for splits, combinations, stock
dividends and the like set forth in the Restated Charter (the "Adjusted
Conversion Prices"). The adjustment of the conversion price of the Series C
Preferred Stock results from the effect of certain anti-dilution adjustments as
to which the holders of the Series C Preferred Stock were entitled pursuant to
the Second Amended and Restated Certificate of Incorporation.
To effectuate EMHV's waiver of the Dividend Rights and adjust the
conversion price of the shares of Series B Preferred Stock and the Series C
Preferred Stock to the Adjusted Conversion Prices, the Company has obtained the
requisite prior consent of its stockholders and
filed the Restated Charter with the Secretary of State of the State of Delaware
(the "SOS") as of the date hereof.
AGREEMENT
The parties hereby agree as follows:
1. AGREEMENTS AND COVENANTS.
1.1. Waiver of Dividend Rights. EMHV hereby waives the Dividend
Rights, which waiver shall be effective upon execution of this Agreement by the
Company and the receipt of confirmation of the filing with, and acceptance by,
the SOS of the Restated Charter.
1.2. Amendment and Restatement of Certificate. In consideration of the
EMHV's waiver contained in Section 1.1, the Company hereby agrees to adjust the
conversion price of the shares of Series B Preferred Stock and the Series C
Preferred Stock to the Adjusted Conversion Prices by filing the Restated
Charter, effective as of the date hereof.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to EMHV as follows:
2.1. Authority. The Company has legal capacity to enter into this
Agreement, to perform its obligations hereunder and thereunder, and to
consummate the transactions contemplated hereby and thereby (including, without
limitation, the filing of the Restated Charter with the SOS). This Agreement has
been duly executed and delivered by the Company and constitutes the legal, valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
2.2. No Conflicts; Consents. The execution and delivery of this
Agreement by the Company does not, the consummation of the transactions
contemplated hereby and thereby, and compliance with the terms hereof and
thereof will not, conflict with, or result in any violation of or default (with
or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under any provision of (a) the Restated Certificate or the
By-Laws of the Company, (b) any contract, commitment, agreement or arrangement
to which the Company is a party or by which any of his properties or assets are
bound, or (c) any judgment, order, decree, statute or law. No permit, order,
license, approval or authorization of, or registration, declaration or filing
with, any person, firm, corporation, partnership, limited liability company,
joint venture, association or entity (governmental or private) is required to be
obtained or made by or with respect to the Company in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby or thereby.
2.3. Capitalization; Voting Rights. The authorized capital stock of
the Company, immediately prior to the date hereof, consisted of: (i) 20,000,000
shares of Common Stock, 2,936,633 of which were issued and outstanding; (ii)
15,000,000 shares of preferred stock, par value $0.0001 per share, of the
Company (the "Preferred Stock"), (A) 2,400,000 of which were designated as the
Series A Preferred Stock, par value $[0.0001] per share, of the Company,
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2,291,144 of which were issued and outstanding, (B) 800,000 of which were
designated as the Series B Preferred Stock of the Company, 593,226 of which were
issued and outstanding, (C) 1,700,000 of which were designated as the Series C
Preferred Stock of the Company, 285,714 of which were issued and outstanding,
(D) 545,500 of which were designated as the Series D Preferred Stock, par value
$[0.0001] per share, of the Company, 438,232 of which were issued and
outstanding. The aggregate outstanding principal amount of the convertible
promissory notes issued by the Company is $2,000,000, and such convertible notes
are currently convertible into 1,200,000shares of Common Stock (including
200,000 warrants to purchase Common Stock).
2.4. Series B and Series C Shares. The books and records of the
Company reflect the record and beneficial ownership by EMHV, as of the date of
this Agreement, of (i) 593,226 shares of Series B Preferred Stock and (ii)
285,714 shares of Series C Preferred Stock. As of the date of this Agreement
(assuming the filing of the Restated Charter), (i) the shares of Series B
Preferred Stock held by EMHV are convertible into 1,034,752 shares of Common
Stock and (ii) the shares of Series C Preferred Stock held by EMHV are
convertible into 295,835 shares of Common Stock.
2.5. Accrued Dividends. As of date of this Agreement, 41,526 shares of
Series B Preferred Stock have accrued, and are unpaid, as mandatory dividends
upon the Series B Shares (the "Accrued Dividends").
3. REPRESENTATIONS AND WARRANTIES OF EMHV.
EMHV hereby represents and warrants to the Company as follows:
3.1. Authority. EMHV has legal capacity to enter into this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by EMHV
and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
3.2. Accrued Dividends on Series B Shares. EMHV acknowledges that the
Accrued Dividends are part of the Dividend Rights waived in accordance Section
1.1 and that, upon the Company's execution and delivery of this Agreement and
the filing of the Restated Charter, EMHV shall have no entitlement to any
Dividend Rights, including such Accrued Dividends.
4. ADDITIONAL COVENANTS.
4.1. Voting Agreement. From the date of this Agreement until the
second anniversary thereof, on all matters relating to the election of directors
of the Company, EMHV agrees to vote all shares of capital stock of the Company
held by EMHV (or shall consent pursuant to an action by written consent of the
holders of capital stock of the Company) so as to elect Xxxx X. Xxxxx, M.D. as a
member of the Company's Board of Directors.
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4.2. Restriction on Transfer. During the twelve (12) month period
immediately subsequent to the closing of the offering of securities of the
Company conducted with the assistance of First Montauk Securities Corp. ("First
Montauk"), for so long as EMHV together with its affiliates holds five percent
(5%) or more of the capital stock of the Company, EMHV shall not, and shall
cause its affiliates not to, transfer any shares of capital stock of the Company
without complying with the right of first refusal granted by the Company to
First Montauk pursuant to the Letter of Intent, dated January 8, 2004, by and
between the Company and First Montauk.
5. MISCELLANEOUS.
5.1. Assignment. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable by any party hereto without
the prior written consent of the other party; provided, however, that
notwithstanding the foregoing, EMHV may assign this Agreement and the rights
hereunder, in whole or in part, to an affiliate (provided that EMHV shall remain
liable as to all obligations of EMHV under this Agreement) and the Company may
assign this Agreement and the rights hereunder, in whole or in part, to the
surviving entity pursuant to a sale of substantially all of the Company's
assets, by merger or consolidation or by a sale of all of the Company's capital
stock (provided that the surviving entity shall remain liable as to all
obligations of the Company under this Agreement). Any instrument purporting to
make an assignment in violation of this Section 5.1 shall be void.
5.2. Benefits of Agreement. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
5.3. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically set
forth herein and therein.
5.4. Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
5.5. Further Assurances. Each party agrees to execute such other
documents, instruments, agreements and consents, and take such other actions as
may be reasonably requested by the other parties hereto to effectuate the
purposes of this Agreement.
5.6. Amendment and Waiver. This Agreement may be amended, modified or
waived only with the prior written consent of each of the parties.
5.7. Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence
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therein, or of or in any similar breach, default or noncompliance thereafter
occurring. All remedies shall be cumulative and not alternative.
5.8. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next business day, (c) five
(5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent as follows:
If to the Company: ImaRx Therapeutics, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx
0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
If to EMHV: Xxxxx Xxxxx Healthcare Ventures, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to: Reitler Xxxxx LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
or, to such other address or facsimile number as the party to whom notice is to
be given may have furnished to the other party in writing in accordance
herewith.
5.9. Titles and Subtitles. The titles of the sections and subsections
of the Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
5.10. Counterparts. This Agreement may be executed in any number of
counterparts (facsimile or otherwise), each of which shall be an original, but
all of which together shall constitute one instrument.
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5.11. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Delaware (without giving effect
to its conflict of laws principles).
5.12. Consent to Jurisdiction and Service of Process. Each of the
parties hereby irrevocably and unconditionally submits to the jurisdiction of
the courts of the State of New York or the State of Arizona and of the Federal
courts sitting in the State of New York or the State of Arizona in any action or
proceeding directly or indirectly arising out of or relating to this Agreement
or the transactions contemplated hereby (whether based in contract, tort, equity
or any other theory). Each of the parties agrees that all actions or proceedings
arising out of or relating to this Agreement must be litigated exclusively in
any such States or, to the extent permitted by law, Federal court that sits in
the County of New York or County of Maricopa, and accordingly, each party
irrevocably waives any objection which it may now or hereafter have to the
laying of the venue of any such action or proceeding in any such court. Each
party further irrevocably consents to service of process in the manner provided
for notices in Section 5.8. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by
law.
5.13. General. Any exhibits are hereby incorporated by reference and
made a part of this Agreement.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first date written above.
IMARX THERAPEUTICS, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx X. Xxxxx, M.D.
Title: President
XXXXX XXXXX HEALTHCARE VENUTERES, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: President
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