EXHIBIT 10.23
___________________________ ___________________________
Name of Subscriber Memorandum No.
SUBSCRIPTION AGREEMENT AND INVESTOR QUESTIONNAIRE
IMARX THERAPEUTICS, INC.
Common Stock Private Offering
OFFERING PRICE $3.00 PER SHARE
THE SHARES OFFERED HEREBY ARE HIGHLY SPECULATIVE AND INVOLVE A HIGH DEGREE
OF RISK AND IMMEDIATE DILUTION AND MAY BE PURCHASED ONLY BY PERSONS WHO QUALIFY
AS ACCREDITED INVESTORS" UNDER RULE 501 (A) OF REGULATION D UNDER THE SECURITIES
ACT.
THIS DOCUMENT HAS NOT BEEN FILED WITH OR REVIEWED BY THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR ANY OTHER COMMISSION OR REGULATORY
AUTHORITY, AND HAS NOT BEEN FILED WITH OR REVIEWED BY THE ATTORNEY GENERAL OF
ANY STATES NOR HAS ANY SUCH COMMISSION, AUTHORITY OR ATTORNEY GENERAL DETERMINED
WHETHER IT IS ACCURATE OR COMPLETE OR PASSED UPON OR ENDORSED THE MERITS OF THIS
OFFERING. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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PLACEMENT AGENT:
FIRST MONTAUK SECURITIES CORP.
CONFIDENTIAL SUBSCRIPTION AGREEMENT AND QUESTIONNAIRE
THIS SUBSCRIPTION AGREEMENT AND INVESTOR QUESTIONNAIRE IS TO BE COMPLETED
BY EACH PERSON WHO DESIRES TO PURCHASE SECURITIES OF IMARX THERAPEUTICS, INC.
(THE "COMPANY") IN CONNECTION WITH THE PROPOSED PRIVATE PLACEMENT OF SHARES OF
COMMON STOCK OF THE COMPANY AS DESCRIBED IN THE OFFERING MEMORANDUM DATED AS OF
DECEMBER 15, 2004 (THE "MEMORANDUM").
THIS MATERIAL DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES. THIS OFFERING WILL BE MADE SOLELY PURSUANT TO THE
TERMS AND CONDITIONS OF THE MEMORANDUM WHICH CONTAINS MATERIAL INFORMATION
REQUIRED TO BE REVIEWED IN CONNECTION WITH ANY INVESTMENT DECISION. ALL TERMS
NOT DEFINED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN THE MEMORANDUM.
INSTRUCTIONS:
Items to be delivered by all Investors:
a. One (1) completed and executed Subscription Agreement and Investor
Questionnaire.
b. Payment in the amount of subscription, by wire transfer of funds or
check. All checks should be made payable to "SIGNATURE BANK AS ESCROW
AGENT FOR IMARX."
For Information and Wire Transfer Instructions:
PLACEMENT AGENT:
FIRST MONTAUK SECURITIES CORP.
Parkway 109 Office Center
000 Xxxxxx Xxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Tel.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx
THE SUBSCRIBER IS RESPONSIBLE FOR ALL WIRE TRANSFER FEES.
The shares of Common Stock ("Shares" or "Securities") of the Company, as
well as the terms of the Offering, which are described in the Memorandum are
being offered without registration under the Securities Act of 1933, as amended
(the "Act"), or the securities laws of any state or any other jurisdiction, in
reliance on the exemption contained in Section 4(2) of the Act and Regulation D
promulgated thereunder and on similar exemptions under applicable state laws.
Under Regulation D of the Act and/or certain state laws, the Company is required
to determine that an individual, or an individual together with a "purchaser
representative" or each individual equity owner of an "investing entity" meets
certain suitability requirements before
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selling Securities to such individual or entity. You understand that the Company
will rely upon the following information to determine whether you meet such
suitability requirements.
THE COMPANY WILL NOT SELL SECURITIES TO ANY SUBSCRIBER WHO HAS NOT FILLED
OUT, AS THOROUGHLY AS POSSIBLE, EXECUTED AND HAND DELIVERED THIS QUESTIONNAIRE.
IN THE CASE OF AN SUBSCRIBER THAT IS A PARTNERSHIP, TRUST, CORPORATION OR OTHER
ENTITY, AN AUTHORIZED OFFICER, OR GENERAL PARTNER OR EACH EQUITY OWNER OR
BENEFICIARY, AS APPLICABLE, MUST COMPLETE THIS QUESTIONNAIRE. This questionnaire
is merely a request for information and does not constitute an offer to sell or
a solicitation of an offer to buy the Shares. No sale will occur prior to the
acceptance of any subscription by the Company and the Placement Agent. The
Company and First Montauk Securities Corp., as Placement Agent, reserve the
right to reject any subscription for any reason or to accept subscriptions for
less than the minimum subscription of $60,000 (20,000 shares). The Company and
First Montauk Securities Corp. will promptly return any money without interest
to a subscriber whose subscription is rejected in whole or in part as the case
may be. Subscribers should also understand that they may be required to furnish
additional information to the Company.
The Shares are being offered by the Company through First Montauk
Securities Corp., as Placement Agent. The purpose of this Questionnaire is to
determine whether you meet certain standards, because the Shares will not be
registered under the Act and will be sold only to persons who are "Accredited
Investors," as that term is defined in Rule 501(a) of Regulation D, promulgated
under the Act. The Shares are sometimes referred to as the "Securities."
Your answers will be kept confidential. At all times, however, you hereby
agree that the Company may present this Questionnaire to such parties as it
deems appropriate in order to assure itself that the offer and the sale of the
Shares to you will not result in violations of federal or state securities laws
which are being relied upon by the Company in connection with the offer and sale
thereof and as otherwise required by law or any regulatory authority.
Please type or clearly print your answers, and state "none" or "not
applicable" when appropriate. Please complete Section A and each other section
you are requested to complete in Question A3. If there is insufficient space for
any of your answers, please attach additional pages. If the Shares are to be
owned by more than one individual or by a corporation or partnership, you may
need extra copies of this Questionnaire. You may use photocopies or request
extra copies from the Company or the Placement Agent.
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SECTION A: SUBSCRIBER INFORMATION
A1. Name(s) of SUBSCRIBER(s): ___________________________________________
___________________________________________
___________________________________________
A2. Principal Amount of Shares
Subscribed for: $_____
(Minimum Subscription
is 20,000 Shares ($60,000))
A3. Manner of Ownership of Securities.
_____ One Individual Please complete Section A, B and C.
_____ Husband and Wife Please have one spouse complete Sections A,
Tenants by the Entirety B and C.
Please have both spouses complete
Section C.
_____ Tenants in Common Please have each individual separately
complete Sections A, B and C.
_____ Joint Tenants with Right of Please have each individual separately
Survivorship - Two or more complete Section A, B and C.
Individuals (but not husband
and wife)
_____ Corporate Ownership Please complete Section A, B, D and, if
applicable, E and F for the corporation. If
the corporation does not qualify as an
"accredited investor" on its own, please
have each person who owns an equity
interest in the corporation separately
complete Sections B and, if applicable, C,
D, E and F.
_____ Partnership Ownership Please complete Sections A, B and D, and
have each general partner and limited
partner separately complete Sections B, C,
D, E and F, if applicable.
_____ Trust Ownership Please complete Sections A, B and F, if
applicable, and have each beneficiary and
trustee of the trust separately complete
Sections B, C, D, E and F, if applicable.
4
NASD AFFILIATION. Please state whether you or any of your associates or
affiliates (which includes your spouse, in-laws and children or parents): (i)
are a member or a person associated (including as an employee, officer,
director, partner) with a member of the National Association of Securities
Dealers, Inc. (the "NASD"), (ii) are an owner of stock or other securities of an
NASD member, (iii) has made a subordinated loan to any NASD member, or (iv) a
relative or member of the same household of any person meeting the description
set forth in clauses (i) through (iii) above.
_____ _____
Yes No
If you marked yes above, please briefly describe the NASD relationship below:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
5
SECTION B: ACCREDITED INVESTOR STATUS
B1. Please check one or more of the following definitions of "accredited
investor," if any, which applies to you. If none of the following applies
to you, please leave blank.
_____ (a) A Bank as defined in Section 3 (a) (2) of the Act, or any savings
and loan association or other institution as defined in Section 3
(a) (5) (A) of the Act whether acting in its individual or fiduciary
capacity;
_____ (b) Any broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx");
_____ (c) An insurance company as defined in Section 2(13) of the Act;
_____ (d) An investment company registered under the Investment Company Act of
1940 or a business development company as defined in Section
2(a)(48) of that Act;
_____ (e) A Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958;
_____ (f) A plan established and maintained by a state, or its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions for the benefit of its employees, if such
plan has total assets in excess of $5,000,000;
_____ (g) Any employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, as amended, if the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment advisor, or
if the employee benefit plan has total assets in excess of
$5,000,000 or, if a self-directed plan, with investment decisions
made solely by persons that are Accredited Investors;
_____ (h) A Private Business Development Company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
_____ (i) An organization described in Section 501(c) (3) of the Internal
Revenue Code, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000;
_____ (j) A natural person whose individual net worth,* or joint net worth
with that person's spouse, at the time of purchase exceeds
$1,000,000;
_____ (k) A natural person who had an individual income** in excess of
$200,000 in each of the two most recent years or joint income with
that person's spouse in excess of $300,000 in each of those years
and has a reasonable expectation of reaching the same income level
in the current year;
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_____ (l) A trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the Shares, whose purchase is
directed by a sophisticated person as described in Rule 506(b) (2)
(ii) of Regulation D;
_____ (m) Any entity in which all of the equity owners are Accredited
Investors. ***
----------
* For purposes hereof net worth shall be deemed to include ALL of your
assets, liquid or illiquid (including such items as home, furnishings,
automobile and restricted securities) MINUS any liabilities (including such
items as home mortgages and other debts and liabilities).
** For purposes hereof the term "income" is not limited to "adjusted gross
income" as that term is defined for federal income tax purposes, but rather
includes certain items of income which are deducted in computing "adjusted
gross income." For Subscribers who are salaried employees, the gross salary
of such Subscribers, minus any significant expenses personally incurred by
such Subscriber in connection with earning the salary, plus any income from
any other source including unearned income, is a fair measure of "income"
for purposes hereof. For Subscribers who are self-employed, "income" is
generally construed to mean total revenues received during the calendar
year minus significant expenses incurred in connection with earning such
revenues.
*** If the Subscriber intends to qualify under (m), then all owners of the
entity must complete a Subscription Agreement as an individual.
7
SECTION C: INDIVIDUAL INFORMATION
C1. General Information
Name: _____________________________________________________________________
Age: _____________________________ Social Security Number: ______________
Marital Status: __________________ Spouse's Name: _______________________
If the Securities are to be owned by two or more individuals (not husband and
wife), are you related to any other co-owner(s)?
_____ _____
Yes No
If Yes, please explain the relationship(s):
________________________________________________________________________________
________________________________________________________________________________
C2. Principal Residence
Address: __________________________________________________________________
Number Street
___________________________________________________________________
City State Zip Code
___________________________________________________________________
Country
Mailing Address (if other than Principal Residence above):
___________________________________________________________________
Number Street
___________________________________________________________________
City State Zip Code
___________________________________________________________________
Country
Telephone Number: ________________________
Facsimile Number: ________________________
8
C3. Current Employment or Business Activity:
Company Name: _____________________________________________________________
Address: __________________________________________________________________
Number Street
___________________________________________________________________
City State Zip Code
Principal Business: _______________________________________________________
Position and Title: _______________________________________________________
Years Employed at Current Position: _______________________________________
C4. Education: Please describe your business or professional education or
training, listing any schools you have attended and degrees you have
received.
DEGREES
DATES SCHOOL MAJOR (IF ANY)
----- ------ --------------
_____________ _______________________________________ ______________________
_____________ _______________________________________ ______________________
_____________ _______________________________________ ______________________
C5. Net worth, inclusive of the net worth of your spouse and the value of your
principal residence, furnishings therein and personal automobile and other
assets (IT IS IMPORTANT THAT YOU CHECK THE HIGHEST APPLICABLE AMOUNT)
exclusive of any liabilities:
[ ] below $249,999
[ ] $250,000 to $349,999 [ ] $350,000 to $699,999
[ ] $700,000 to $799,999 [ ] $800,000 to $1,000,000
[ ] $1,000,000 to $1,249,999 [ ] over $1,250,000
C6. Net worth: Your net worth, inclusive of the net worth of your spouse and
excluding the value of your principal residence, furnishings therein and
personal automobiles and exclusive of any liabilities:
[ ] below $249,999
[ ] $250,000 to $349,999 [ ] $350,000 to $699,999
[ ] $700,000 to $799,999 [ ] $800,000 to $1,000,000
[ ] $1,000,000 to $1,249,999 [ ] over $1,250,000
9
C7. Indicate (a) your individual income from all sources for the calendar years
2002 and 2003 and estimated income for 2004 or (b) your joint income with
your spouse from all sources for the calendar years 2002 and 2003 and
estimated income for 2004 (it is important that you check the highest
applicable amount):
(a) individual income:
$200,000 $300,000 $400,000 $500,000
to to to and
$299,000 $399,000 $499,000 over
-------- -------- -------- --------
2002 ________ ________ ________ ________
2003 ________ ________ ________ ________
2004 ________ ________ ________ ________
(b) joint income:
$200,000 $300,000 $400,000 $500,000
to to to and
$299,000 $399,000 $499,000 over
-------- -------- -------- --------
2002 ________ ________ ________ ________
2003 ________ ________ ________ ________
2004 ________ ________ ________ ________
C8. Investment experience:
(a) The frequency with which you invest in marketable securities is:
[ ] often [ ] occasionally [ ] never
(b) The frequency with which you invest in unmarketable securities (such
as private placement offerings) is:
[ ] often [ ] occasionally [ ] never
(c) Have you previously participated in private placement offerings in the
last 5 years?
_____ _____
Yes No
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(d) If you answered "yes" to (c) above, state the private placements in
which you participated in the last 5 years.
Amount Name of
Year Invested Entity
---- -------- -------
1999 $_______ _________________________
2000 $_______ _________________________
2001 $_______ _________________________
2002 $_______ _________________________
2003 $_______ _________________________
2004 $_______ _________________________
C9. (a) Have you been afforded an opportunity to investigate the Company and
review relevant factors and documents pertaining to the officers, directors
and the Company and its business and to ask questions of a qualified
representative of the Company regarding this investment and the properties,
operations, and methods of doing business of the Company?
_____ _____
Yes No
(b) Do you understand the nature of an investment in the Company and the
risk associated with such an investment?
_____ _____
Yes No
(c) Do you understand that there is no guarantee of any financial return on
this investment?
_____ _____
Yes No
(d) Do you understand that this investment is not liquid?
_____ _____
Yes No
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(e) Do you have adequate means of providing for your current needs and
personal contingencies in view of the fact that this is not a liquid
investment?
_____ _____
Yes No
(f) Are you aware of the Company's business affairs and financial
condition, and have you acquired all such information about the Company as
you deem necessary and appropriate to enable you to reach an informed and
knowledgeable decision to acquire the Shares?
_____ _____
Yes No
(g) Do you have a "pre-existing relationship" with the Company or any of
its officers, directors or controlling person?
_____ _____
Yes No
(For purposes hereof, "Pre-existing relationship" means any relationship
consisting of person or business contacts of a nature and duration such as would
enable a reasonable prudent Subscriber to be aware of the character, business
acumen, and general business and financial circumstances of the person with whom
such relations exists.)
If so, please name the individual or other person with whom you have a
pre-existing relationship and describe the relationship:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
12
SECTION D: CORPORATE OFFEREES OR PARTNERSHIP OFFEREES
D1. General Information
Legal name of Corporation or Partnership
___________________________________________________________________________
Fictitious name (d/b/a): __________________________________________________
___________________________________________________________________________
State or Place of Incorporation: __________________________________________
Date of Incorporation: ____________________________________________________
If Partnership, type: _____________ General ____________ Limited
Federal I.D. Number: ______________________________________________________
Fiscal Year Ends: _________________________________________________________
Number of Equity Owners: __________________________________________________
Name and Title of Authorized Person Executing Questionnaire:
___________________________________________________________________________
D2. Business Address: _________________________________________________________
If Partnership, type: _____________ General _____________ Limited
Mailing Address (if different): ___________________________________________
Telephone Number: [ ] _____________ Facsimile Number: [ ] _____________
D3. Name of Primary Bank: _____________________________________________________
Address: __________________________________________________________________
Telephone Number: [ ] ______________
Account Type and Number: __________________________________________________
Person Familiar with your Account: ________________________________________
13
Was the corporation or partnership formed for the specific purpose of
purchasing Securities in the Offering?
_____ _____
Yes No
Check if applicable to the corporation:
Subchapter S ________________ Professional _________________
D4. The undersigned represents and warrants as follows:
(a) The corporation or partnership, as the case may be, has been duly
organized (if a partnership) is validly existing as a corporation or
partnership in good standing under the laws of the jurisdiction of its
incorporation or formation with full power and authority to enter into
the transactions contemplated by the Subscription Agreement;
(b) (i) The officers or partners of the undersigned who, on behalf of the
undersigned, have considered the purchase of the Securities and the
advisers, if any, of the corporation or the partnership, as the case
may be, in connection with such consideration are named below in this
Questionnaire, and such officers and advisors or partners, if any,
were duly authorized to act for the corporation or the partnership in
reviewing such investment;
(ii) The names and positions of the officers or partners, of the
undersigned who, on its behalf, have reviewed the purchase of the
Securities are as follows:
______________________________ ______________________________
______________________________ ______________________________
(iii) In evaluating the merits and risks of the purchase of the
Securities, the corporation or the partnership, as the case may be,
intends to rely upon the advice of, or will consult with, the
following persons:
______________________________ ______________________________
______________________________ ______________________________
(c) The officers of the corporation (if not Accredited Investors) or the
partners of the partnership who, on its behalf, have considered the
purchase of the Securities and the advisors, if any, of the
corporation or the partnership who, in connection with such
consideration, together have such knowledge and experience in
financial and business matters that such offering(s), partner(s) and
such advisor(s), if any,
14
together are capable of evaluating the merits and risks of the
purchase of Securities and of making an informed investment decision;
(d) Together with any corporation or group of corporations with which it
files a consolidated federal income tax return, the undersigned has
reserves and/or net worth adequate to permit it to satisfy any tax or
other liabilities arising from its personal liability with respect to
the investment and the operation thereof;
(e) The total assets of the corporation or the partnership are in excess
of $ _____________;
(f) The corporation or the partnership has had, during each of the past
two years, gross income from all sources of at least $ _____________
and $ _____________, respectively;
(g) The undersigned expects the corporation or the partnership to have
during the current and the next tax year, gross income from all
sources of at least $ _____________;
(h) The undersigned knows of no pending or threatened litigation the
outcome of which could adversely affect the answer to any question
hereunder; and
(i) Indicate the following if a partnership Subscriber:
(1) The date the partnership was formed and state of formation:
___________________________________________________________
(2) The names of each partner in the partnership:
___________________________________________________________
15
SECTION E: TRUST OFFEREES
E1. General Information
Legal Name: _______________________________________________________________
State or Place of Formation: ______________________________________________
Date of Formation: ________________________________________________________
Federal I.D. Number: ________________ Fiscal Year Ends: ________________
Number of Beneficiaries: __________________________________________________
Principal Purpose: ________________________________________________________
Was the trust formed for the specific purpose of purchasing the Securities?
_____ _____
Yes No
E2. Business Address:
Telephone Number: [ ] ________________________
Facsimile Number: [ ] ________________________
Mailing Address: __________________________________________________________
___________________________________________________________________________
E3. Authorization: If the trust was established in connection with a deferred
compensation plan, please attach a copy of the trust's organizational
documents and a properly certified copy of the resolutions adopted by the
trust's board of directors authorizing the trust to purchase the Shares and
authorizing the trustee named below to execute on behalf of the trust all
relevant documents necessary to subscribe for and purchase the Shares. In
all cases, please attach a properly certified copy of the resolutions
adopted by the trustees of the trust authorizing the trust to purchase
Shares and authorizing the trustee named below to execute on behalf of the
trust all relevant documents necessary to subscribe for and purchase the
Shares.
Name of Trustee Authorized and Executing Questionnaire:
________________________________________________________________________________
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E4. Name of Primary Bank: _____________________________________________________
Address: __________________________________________________________________
Telephone Number: [ ] ________________________
Facsimile Number: [ ] ________________________
Account Type and Number: __________________________________________________
Person Familiar with your Account: ________________________________________
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SECTION F: QUALIFIED PENSION PLAN ("PLAN") OFFEREES
F1. Please check one:
__________ a. The Plan requires the investment of each beneficiary or
participant to be held in a segregated account and the Plan
allows each beneficiary or participant to make his own
investment decisions and, the decision to purchase the Shares
has been made by the beneficiary or the participant and such
beneficiary or participant is an Accredited Investor (Please
have each such beneficiary or participant execute a separate
Questionnaire).
OR
__________ b. The investment decisions made for the Plan are made by a plan
fiduciary, whether a bank, an insurance company, or a registered
investment advisor.
OR
__________ c. The Plan has total assets exceeding $5,000,000.
F2. General Information
Legal Name: _______________________________________________________________
State or Place of Formation: ______________________________________________
Date of Formation: ________________________________________________________
Federal I.D. Number: ________________ Fiscal Year Ends: ___________________
Number of Beneficiaries: __________________________________________________
Principal Purpose: ________________________________________________________
F3. Business Address:
Telephone Number: [ ] ________________________
Facsimile Number: [ ] ________________________
Mailing Address: __________________________________________________________
___________________________________________________________________________
F4. Authorization: If the investment decision is being made by a beneficiary or
participant of a Plan, please attach applicable trust documents which
permit each beneficiary or participant to make his own investment
decisions. In all other cases, please attach a properly certified copy of
the resolutions adopted by the trustees of the Plan trust authorizing the
Plan to purchase
18
the Shares and authorizing the fiduciary named below to execute on behalf
of the Plan all relevant documents necessary to subscribe for and purchase
the Shares.
Name of Trustee Authorized and Executing Questionnaire:
___________________________________________________________________________
F5. Name of Primary Bank:
Address: __________________________________________________________________
___________________________________________________________________________
Telephone Number: [ ] ________________________
Facsimile Number: [ ] ________________________
Account Type and Number: __________________________________________________
Person Familiar with your Account: ________________________________________
19
SECTION G: REPRESENTATIONS AND WARRANTIES BY ALL SUBSCRIBERS
By signing this Questionnaire, the undersigned hereby confirms the
following statements:
(a) I have read the Confidential Private Offering Memorandum and this
Subscription Agreement and other accompanying documents of the Company, and am
aware of and understand the risk factors disclosed therein related to the
Company and an investment in the Company.
(b) I am aware that the offering of the Shares involves securities for
which no market exists, thereby requiring any investment to be maintained for an
indefinite period of time. The Company is not a reporting company under the
Securities and Exchange Act of 1934, and therefore does not file periodic
reports with the SEC.
(c) I acknowledge that any delivery to me of the Confidential Private
Offering Memorandum relating to the Shares prior to the determination by the
Company of my suitability as an Subscriber shall not constitute an offer of the
Shares until such determination of suitability shall be made, and I agree that I
shall promptly return the Confidential Private Offering Memorandum and the other
Offering Documents to the Company upon request.
(d) I also understand and agree that, although the Company and the
Placement Agent will use their respective best efforts to keep the information
provided in answers to this Questionnaire strictly confidential, the Company and
the Placement Agent or their respective counsel may present this Questionnaire
and the information provided in answer to it to such parties as they may deem
advisable if called upon to establish the availability under any federal or
state securities laws of an exemption from registration of the private placement
or if the contents thereof are relevant to any issue in any action, suit or
proceeding to which the Company, the Placement Agent or their respective
affiliates is a party, or by which they are or may be bound or as otherwise
required by law or regulatory authority.
(e) I realize that this Questionnaire does not constitute an offer to sell
or a solicitation of an offer to buy the Shares or any other security of the
Company but is merely a request for information.
(f) I understand that the Shares are being offered without registration
under the Securities Act in reliance upon the private offering exemption
contained therein, and that such reliance is based in part on the information
herein supplied. For the foregoing reasons and to induce the Company to issue
and deliver the Securities to me, I represent and warrant that the information
stated herein is true, accurate and complete, and I agree to notify and supply
corrective information promptly to the Company as provided above if any of such
information becomes inaccurate or incomplete.
(g) The individual signing below on behalf of any entity hereby warrants
and represents that he/she is authorized to execute this questionnaire on behalf
of such entity.
(h) The undersigned is able to bear the economic risk of the investment and
can afford a complete loss of such investment.
20
(i) Subject to the terms and conditions hereof and on the basis of the
representations and warranties hereinafter set forth, the Company hereby agrees
to issue and sell to the Subscriber and the Subscriber agrees to purchase from
the Company, upon Closing, the Shares as described in the Memorandum at a price
per Share of $3.00. The Company or the Placement Agent may reject any
subscription in whole or in part.
(j) The Subscriber acknowledges and agrees that there is a "minimum"
offering amount of $3,000,000 in aggregate gross proceeds prior to release of
funds to the Company.
(k) In entering into this Agreement and in purchasing the Securities, the
Subscriber further acknowledges that:
(i) The Company has informed the Subscriber that the Securities have
not been offered for sale by means of general advertising or solicitation.
(ii) The Securities may not be resold by the Subscriber in the absence
of a registration under the Act or exemption from registration. In particular,
the Subscriber is aware that the Securities will be "restricted securities", as
such term is defined in Rule 144 promulgated under the Securities Act ("Rule
144"), and they may not be sold pursuant to Rule 144, unless the conditions
thereof are met.
(iii) The following legends (or similar language) shall be placed on
the certificate(s) evidencing the Securities:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), OR ANY STATE SECURITIES LAWS
AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF
COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE
STATE SECURITIES LAWS.
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
SUBSCRIPTION AGREEMENT TO WHICH THE CORPORATION IS A PARTY. THE AGREEMENT
INCLUDES, AMONG OTHER THINGS, A LOCK-UP AGREEMENT BY THE HOLDER IN THE
EVENT OF AN UNDERWRITTEN OFFERING AND PROVIDES THAT NONE OF SUCH SHARES, OR
ANY INTEREST THEREIN, SHALL BE TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF WITHOUT FIRST OFFERING SUCH SHARES TO THE CORPORATION
21
IN ACCORDANCE WITH SUCH AGREEMENT. COPIES OF SUCH AGREEMENT ARE ON FILE IN
THE OFFICE OF THE CORPORATION AND WILL BE MADE AVAILABLE FOR INSPECTION TO
ANY PROPERLY INTERESTED PERSON WITHOUT CHARGE UPON WRITTEN REQUEST.
(iv) The Company may at any time place a stop transfer order on its
transfer books against the Securities. Such stop order will be removed, and
further transfer of the Securities will be permitted upon an effective
registration of the respective Securities, or the receipt by the Company of an
opinion of counsel satisfactory to the Company that such further transfer may be
effected pursuant to an applicable exemption from registration.
(v) The purchase of the Securities involves risks which the Subscriber
has evaluated, and the Subscriber is able to bear the economic risk of the
purchase of such securities and the loss of its entire investment.
(l) The Subscriber agrees to indemnify and hold harmless the Company, the
officers, directors, employees, agents, counsel and affiliates of the Company,
and each other person, if any, who controls the Company, within the meaning of
Section 15 of the Act or Section 20 of the Securities and Exchange Act of 1934,
as amended, against any and all losses, liabilities, claims, damages and all
expenses reasonably incurred in investigating, preparing or defending against
any litigation commenced or threatened or any claim whatsoever arising out of or
based upon any false representation or warranty or breach or failure by the
Subscriber to comply with any covenant or agreement made by the Subscriber
herein or in any other document furnished by the Subscriber to any of the
foregoing in connection with this transaction.
(m) The Subscriber hereby acknowledges and agrees, subject to any
applicable state securities laws that the subscription and application hereunder
are irrevocable, that the Subscriber is not entitled to cancel, terminate or
revoke this Subscription Agreement and that this Subscription Agreement shall
survive the death or disability of the Subscriber and shall be binding upon and
inure to the benefit of the Subscriber and his heirs, executors, administrators,
successors, legal representatives, and assigns. If the Subscriber is more than
one person, the obligations of the Subscriber hereunder shall be joint and
several, and the agreements, representations, warranties, and acknowledgments
herein contained shall be deemed to be made by and be binding upon each such
person and his heirs, executors, administrators, successors, legal
representatives, and assigns.
(n) The Company and the Placement Agent have each employed its own legal
counsel in connection with the Offering. The Subscribers have not been
represented by independent counsel in connection with the preparation of the
Memorandum or the terms of this Offering and no investigation of the merits or
fairness of the Offering has been conducted on behalf of the Subscribers.
Prospective Subscribers should consult with their own legal, tax and financial
advisors with respect to the Offering made pursuant to the Memorandum.
(o) The undersigned hereby acknowledges that officers, affiliates,
employees and directors of the Company and/or the Placement Agent may purchase
Shares in the Offering.
22
(p) My answers to the foregoing questions are true and complete to the best
of my information and belief and I will promptly notify the Company of any
changes in the information I have provided.
23
SECTION H: OTHER COVENANTS AND AGREEMENTS
(A) REGISTRATION RIGHTS.
The Subscriber and the Company agree that the Subscriber shall be entitled
to the registration rights with respect to the Shares as set forth in this
Section H (a).
(i) Definition of Registrable Securities. As used herein the term
"Registrable Security" means each Share issued in the Offering and any
securities issued upon any stock split or stock dividend in respect thereof;
provided, however, that with respect to any particular Registrable Security,
such security shall cease to be a Registrable Security when, as of the date of
determination; (A) it has been effectively registered under the Act and disposed
of pursuant thereto; (B) registration under the Act is no longer required for
subsequent public distribution of such security; or (B) it has ceased to be
outstanding. The term "Registrable Securities" means any and/or all of the
securities falling within the foregoing definition of a "Registrable Security."
In the event of any merger, reorganization, consolidation, recapitalization or
other change in corporate structure affecting the Common Stock, such adjustment
shall be made in the definition of "Registrable Security" as is appropriate in
order to prevent any dilution or increase of the rights granted pursuant to this
Clause (a) as determined in good faith by the Board of Directors;
(ii) Registration by the Company. The first time after the date hereof that
the Company files a registration statement under the Act not on Form X-0, X-0 or
another inappropriate form with the Securities and Exchange Commission to
register for sale any of its shares of Common Stock, the Company will include
for resale under the Act in the registration statement the Registrable
Securities. The Company shall not be required to register for resale any
Registrable Securities if at the time of such proposed registration, the
Registrable Securities may be sold without any limitation under Rule 144.
Notwithstanding the foregoing, if the registration statement filed by the
Company is pursuant to an underwritten offering:
(A) if the underwriter determines in good faith that marketing factors
require the exclusion of all shares held by existing stockholders, no
Registrable Securities shall be included in such registration and the right to
have Registrable Securities included in the first registration statement filed
by the Company shall be deferred to the second registration statement filed by
the Company, which deferral may be continued to the third or subsequent
registration statement so long as the registration statements are pursuant to
underwritten offerings and the underwriter determines in good faith that
marketing factors require exclusion of all shares held by existing stockholders;
(B) each holder of Registrable Securities ("Holder") shall enter into
an underwriting agreement in customary form with the underwriter and provide
such information regarding Holder that the underwriter shall reasonably request
in connection with the preparation of the prospectus describing such offering,
including completion of NASD Questionnaires; and
(C) each Holder hereby agrees that such Holder shall not sell,
transfer, make any short sale of, grant any option for the purchase of, or enter
into any hedging or similar transaction with the same economic effect as a sale,
any Registrable Securities for a period specified by the underwriter not to
exceed one hundred eighty (180) days following the effective
24
date of the registration statement, or such lesser period equal to the lockup
period required of the Company's officers and directors and other shareholders.
The Company may impose stop-transfer instructions with respect to Registrable
Securities subject to the foregoing restriction until the end of said lock-up
period. Each Holder agrees that any transferee of any Registrable Securities
shall be bound by this lock-up agreement and certificates evidencing the
Registrable Securities shall include a legend reflecting this agreement (see
above).
(iii) Covenants of the Company With Respect to Registration. In connection
with the registration in which the Registrable Securities are included, the
Company covenants and agrees as follows:
(A) The Company shall use its commercially reasonable efforts to have
the registration statement declared effective as soon as possible after filing,
and shall furnish each Holder of Registrable Securities such number of
prospectuses as shall reasonably be requested. In addition, the Company shall
file such amendments as may be required from time to time, in order to keep any
registration statement filed under this Clause (a) effective as provided herein.
The registration statement filed by the Company hereunder shall remain effective
for the earlier of (i) 9 months or (ii) the date that the Registrable Securities
may be sold without volume limitation under SEC Rule 144(k).
(B) The Company shall pay all costs (excluding fees and expenses of
Holder(s) counsel and any underwriting or selling discounts or commissions),
fees and expenses in connection with the registration statement filed pursuant
hereto including, without limitation, the Company's legal and accounting fees,
printing expenses, blue sky fees and expenses.
(C) The Company will take all necessary action which may be required
in qualifying or registering the Registrable Securities included in the
registration statement, for offering and sale under the securities or blue sky
laws of such states as reasonably are requested by the Holder(s), provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
(D) The Company shall indemnify each Holder of Registrable Securities
to be sold pursuant to the registration statement and each person, if any, who
controls such Holder within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
against all loss, claim, damage, expense or liability (including all reasonable
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may become subject under the Act, the
Exchange Act or otherwise, arising from such registration statement, except to
the extent arising under paragraph (E) below.
(E) Each Holder of Registrable Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and any
underwriter, and each person, if any, who controls the Company or such
underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against all loss, claim, damage or reasonable expense or liability
(including all expenses reasonably incurred in investigating, preparing or
defending against any claim
25
whatsoever) to which they may become subject under the Act, the Exchange Act or
otherwise, arising (I) from information furnished by or on behalf of such
Holder, or their successors or assigns, for specific inclusion in such
registration statement or (II) as a result of use by the Holder of a
registration statement that the Holder was advised to discontinue; provided,
however, that in no event shall any indemnity hereunder exceed the net proceeds
from the offering received by such Holder.
(B) ANTI- DILUTION PROTECTION.
(i) Unless waived by the Placement Agent on behalf of all investors in the
Offering, during the period commencing on the date hereof and ending upon the
earlier of (A) a date which is three years following the Final Closing Date of
the Offering or (B) the date which is one day prior to the effective date of an
initial public offering, if the Company sells or issues additional shares of
Common Stock, or securities convertible into Common Stock, with a purchase,
exercise or conversion price (the "Share Antidilution Price") of less than the
Share Issue Price (which shall initially be $3.00, as adjusted for stock splits,
stock dividends and the like), with certain exceptions set forth below, the
Company shall promptly issue to each investor in the Offering additional shares
of Common Stock.
(ii) The number of additional shares of Common Stock issuable to each
investor shall be determined by multiplying the number of Shares purchased by
such investor in the Offering by the result of the following equation:
The number of additional shares of Common Stock issuable to each investor shall
be such number as equals the excess of "A" over "B", where :
A = (Number of Shares Purchased in this Offering* X Share Issue Price*)
-------------------------------------------------------------------
Share Antidilution Price
and
B = The number of Shares acquired by such investor in this Offering*
* (giving effect to stock splits, stock dividends, and the like)
The number of additional shares issued to each investor will be rounded down to
the nearest whole share, and no fractional shares will be issued.
(iii) Notwithstanding the foregoing, the following issuances by the Company
shall not result in any adjustment of the Share Antidilution Price or any
issuance of additional shares to investors in the Offering: (A) shares of Common
Stock issued upon conversion of Preferred Stock, (B) up to 4,000,000 shares of
Common Stock and/or options, and the Common Stock issued pursuant to such
options, (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like, and net of any repurchases of such shares or
cancellations or exemptions of such options, warrants or other rights) to
employees, officers or directors of, or consultants or advisors to the
Corporation or any subsidiary pursuant to stock purchase or stock option plans
or other arrangements that are approved by the Board ("Employee Options"), (C)
shares of capital stock issuable upon exercise or conversion of options (other
than Employee
26
Options) or warrants or other securities or rights outstanding as of the date of
the Memorandum and (D) shares of Common Stock issued to third parties in
connection with bank loan or license arrangements or other strategic
transactions approved by the Board of Directors with one or more
biopharmaceutical or similar entities or institutional investors.
(iv) Within 15 days following any transaction by the Company which would
result in the investors in the Offering being entitled to additional shares of
Common Stock hereunder, the Company shall provide written notice of such
transaction to each investor and the Placement Agent of the terms of such
transaction and shall, within 30 days of consummation of such transaction,
deliver share certificates to the investors (or the Placement Agent on their
behalf) representing any additional shares. Any such additional shares shall be
included in the term "Registrable Securities" in Section G clause (a) above.
(C) PUT OPTION ON MERGER OR CONSOLIDATION.
(i) In the event of a merger or consolidation where the Company is not the
surviving entity or sale of substantially all of the assets of the Company
during the term commencing on the Initial Closing of the Offering and ending on
the day prior to the effective date of an initial public offering (a
"liquidation event"), the Company hereby agrees that investors in this Offering
shall have the option to put their shares back to the Company immediately prior
to and conditioned upon consummation of such liquidation event in exchange for a
payment in cash equal to 150% of their original subscription amount (the "Put
Price"); provided, however, in the event that: (A) the third party to the
liquidation event is a reporting company under the Securities and Exchange Act
of 1934; (B) its shares of publicly traded securities are being used as
consideration in the Offering; (C) such securities are traded on either the New
York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market and
(D) the securities have a closing sales price in excess of $5.00 per share for
the 30 trading days prior to announcement of such transaction and a daily
average volume equal to or in excess of 50,000 shares per day, such payment may
be made in the form of such securities provided that the securities are
immediately available for resale pursuant to Rule 145 or a resale registration
statement.
(ii) At least 15 days prior to any transaction by the Company which would
result in the investors in the Offering being entitled to exercise their put
rights hereunder, the Company shall provide written notice of such transaction
to each investor and the Placement Agent of the terms of such transaction.
Investors shall have 10 days to notify the Company in writing of their desire to
exercise or not exercise their put rights hereunder, or the Placement Agent may
so notify the Company on behalf of all investors. To the extent that an investor
or the Placement Agent on behalf of such investor, as the case may be, does not
provide the notice as set forth in the immediately preceding sentence, such
investor will be deemed to have irrevocably agreed not to exercise their put
right hereunder.
(iii) The closing for the purchase of the Shares for which put rights have
been timely exercised hereunder (the "Put Securities") will occur as soon as
practicable following the consummation of the transaction giving rise to the put
rights hereunder by the Company's prompt payment of the Put Price following
receipt of original certificates for the Put Securities, duly endorsed or
accompanied by an appropriate stock power. If the Company does not have
27
sufficient funds legally available to pay the Put Price for the Put Securities
under the Delaware General Corporation Law or otherwise, then the Company will
purchase the maximum number of Put Securities for which the Company has funds
legally available, pro rata based upon the number of Put Securities tendered
hereunder. The remaining shares which cannot be purchased because of the lack of
funds available to the Company shall be exchanged for new shares of the merged
entity at the Put Price. The "pro rata" amount shall be determined by percentage
of Shares held by the subscriber relevant to the entire number of Shares sold in
the Offering and then outstanding.
(D) ISSUANCE OF ADDITIONAL SHARES FOR FAILURE TO TIMELY BECOME REPORTING
COMPANY.
(i) Unless waived by the Placement Agent on behalf of all investors in the
Offering, in the event that the Company fails to become a reporting company
under the Securities Exchange Act of 1934 within a date which is within 24
months following the date of the final Closing of the Offering, then the
undersigned subscriber shall be entitled to additional shares of Common Stock of
the Company equal to (A)10% of his initial subscription and (B) thereafter 5% of
his initial subscription for each 90 day period (or part thereof) for any
continued failure by the Company. The number of shares to be received shall be
based upon a price equal to the lower of (x) the price per Share in the Offering
or (z) the lowest price per share received by the Company in connection with any
sale of its common stock (or in the event of the issuance or sale of convertible
securities, the conversion or exercise price) within 6 months of any such date.
(ii) Within 15 days following the date on which investors in the Offering
become entitled to additional shares of Common Stock hereunder, the Company
shall provide written notice of such entitlement to each investor and the
Placement Agent and shall, within 30 days of consummation of such transaction,
deliver share certificates to the investors (or the Placement Agent on their
behalf) representing any additional shares. Any such additional shares shall be
included in the term "Registrable Securities" in Section G clause (a) above.
(E) COMPANY RIGHT OF FIRST REFUSAL.
(i) In the event any Registrable Securities, or any interest therein, are
to be transferred, voluntarily or involuntarily (including, without limitation,
any sale, encumbrance, foreclosure or transfer in lieu thereof, or by operation
of law, any division of marital property on account of divorce or legal
separation being deemed a "transfer" for purposes hereof), the Company (or its
nominees) shall have a right of first refusal as follows:
(A) the holder of such Registrable Securities shall give the Company
advance written notice detailing all the terms of the proposed transfer. The
Company (or its nominees) shall have the right (but not the obligation),
exercisable upon delivery to the transferring stockholder of written notice of
acceptance within 10 days following receipt of the notice of proposed transfer
described in the preceding sentence, to repurchase all or any of such
Registrable Securities on the terms and conditions set forth in such notice.
28
(B) The "Payment Date" for purposes of this paragraph shall be on or
before the 10th day following delivery of the Company's notice of exercise.
Holder will surrender all stock certificates to the Company promptly upon
request on or before the Payment Date.
(C) Failure by the Company (or its nominees) (without default by the
transferring stockholder) to close such purchase within the above 10-day period
shall give the transferring stockholder the right to transfer such shares or
interest therein on the terms and to the person described in the notice during
the 45 days following expiration of the original 10-day period; provided that
the shares or interest therein to be transferred shall for all purposes remain
subject to the Company's right of first refusal hereunder. If the transferring
stockholder fails to close the proposed transfer on those terms within such
45-day period, the proposed transfer shall again be subject to the terms of this
paragraph.
(D) Notwithstanding the foregoing, nothing herein shall be construed
to impede or nullify any transfer of such shares made to any trusts in which
holder or a member of holder's immediate family are trustors or the
beneficiaries thereof, or to a partnership, limited liability company or other
entity of which holder and member(s) of holder's immediate family are the sole
equity owners, and in each of the foregoing cases where such trust or entity is
controlled by holder, directly or indirectly, whether or not for adequate
consideration. Such transfers may be made without providing the Company notice
or a right of first refusal. The transferee of such shares shall at all times be
bound by the restrictions provided in this paragraph with regard to future
transactions and shall execute an appropriate instrument to this effect.
Certificates evidencing Shares issued in the Offering will be legended to
reflect the foregoing restrictions (see above). This right of first refusal
shall expire on the date that the Company becomes a reporting company under the
Securities Exchange Act of 1934.
(F) AUTHORIZATION OF PLACEMENT AGENT AS AGENT FOR PURPOSES OF SECTION H
(B) AND (C).
By execution hereof, each undersigned subscriber empowers and authorizes
the First Montauk Securities Corp. to act on behalf of the subscriber, in First
Montauk Securities Corp.'s discretion, to waive the anti-dilution adjustment
described in Section H(b) and/or the exercise or waiver of the put right
described in Section H(c).
[signature page appears next]
29
IN WITNESS WHEREOF, the undersigned has duly executed this Subscription
Agreement and Questionnaire and agrees to the terms hereof.
Dated: ______ __, 200__ FOR INDIVIDUALS:
(INCLUDING PURCHASER REPRESENTATIVE)
----------------------------------------
(Print Name)
----------------------------------------
(Signature)
Dated: ______ __, 200__ FOR INDIVIDUALS:
(INCLUDING PURCHASER REPRESENTATIVE)
----------------------------------------
(Print Name)
----------------------------------------
(Signature)
30
IN WITNESS WHEREOF, the undersigned has duly executed this Subscription
Agreement and Questionnaire and agrees to the terms hereof.
Dated: ______ __, 200__ FOR CORPORATIONS:
----------------------------------------
Name of Company
----------------------------------------
Executive Officer of Company
----------------------------------------
Signature of Officer
Dated: ______ __, 200__ FOR PARTNERSHIPS:
----------------------------------------
Name of Partnership
----------------------------------------
Name of Authorized Partner
----------------------------------------
Signature of Authorized Partner
31
IN WITNESS WHEREOF, the undersigned has duly executed this Subscription
Agreement and Questionnaire and agrees to the terms hereof.
Dated: ______ __, 200__ FOR TRUSTS:
----------------------------------------
Name of Trust
----------------------------------------
Name of Authorized Trustee
----------------------------------------
Signature of Authorized Trustee
32
ACCEPTANCE OF SUBSCRIPTION BY THE COMPANY
The undersigned, ImaRx Therapeutics, Inc. hereby accepts the Subscription
Agreement of __________________________________ as of the date stated below.
Dated: ______ __, 200__ ImaRx Therapeutics, Inc.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
33
