EXHIBIT 9.1
IMARX THERAPEUTICS, INC.
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT (the "AGREEMENT") is made and
entered into as of October 10, 2002, by and among IMARX THERAPEUTICS, INC., a
Delaware corporation (the "COMPANY"), and the persons and entities listed on
Exhibit A hereto (the "INVESTORS").
WITNESSETH
WHEREAS, certain of the Investors and the Company have entered into that
certain Voting Agreement dated August 9, 2000, as amended on January 18, 2001
(the "PRIOR VOTING AGREEMENT") and, in accordance with Section 3.5 of the Prior
Voting Agreement, the Company and certain of the signatories to the Prior Voting
Agreement whose signatures appear below and who hold, in the aggregate, the
percentage of capital stock of the Company required to amend and restate the
Prior Voting Agreement desire to amend and restate the Prior Voting Agreement as
set forth herein.
WHEREAS, the Investors have purchased shares of the Company's Series A
Convertible Preferred Stock and/or Series D Convertible Preferred Stock
(collectively, the "PREFERRED STOCK"), pursuant to various stock purchase
agreements, most recently pursuant to that certain Series D Preferred Stock
Purchase Agreement, dated as of the date hereof (as amended from time to time,
the "PURCHASE AGREEMENT");
WHEREAS, the obligations in the Purchase Agreement are conditioned upon the
execution and delivery of this Agreement; and
WHEREAS, in connection with the consummation of the transactions
contemplated by the Purchase Agreement, the Company and the Investors have
agreed to provide for the future voting of their shares of the Company's capital
stock as set forth below.
NOW, THEREFORE, in consideration of these premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the Prior Voting Agreement shall be
amended and restated in its entirety as follows:
AGREEMENT
1. VOTING.
1.1 INVESTOR SHARES. Each Investor agrees to hold all shares of Preferred
Stock registered in its name or beneficially owned by it as of the date hereof,
any and all other Preferred Stock of the Company legally or beneficially
acquired by the Investor after the date hereof, and any and all shares of Common
Stock of the Company issued upon conversion of such Preferred Stock (hereinafter
collectively referred to as the "INVESTOR SHARES") subject to, and to vote the
Investor Shares in accordance with, the provisions of this Agreement.
1.2 ELECTION OF SERIES A DIRECTORS.
(A) Pursuant to Section 11 of Article IV of the Company's Amended and
Restated Certificate of Incorporation (as amended form time to time, the
"RESTATED CERTIFICATE"), prior to the date of the Company's second annual
stockholders' meeting following the closing of a firmly underwritten public
offering of the Company's Common Stock pursuant to a registration statement
under the Securities Act of 1933, as amended (the "TWO YEAR IPO ANNIVERSARY"),
(I) the holders of a majority of the Series A Preferred Stock and any Common
Stock issued upon conversion of the Series A Preferred Stock, voting as a single
class on an as-if-converted to Common Stock basis, shall elect four (4)
directors of the Company (the "SERIES A DIRECTORS"), and (ii) the holders of a
majority of all other capital voting stock, voting as a single class on an
as-if-converted to Common Stock basis, shall elect three (3) directors of the
Company.
(B) During the term of this Agreement, to the extent each is entitled
under the Restated Certificate or applicable law, each Investor agrees to vote
at any regular or special meeting of stockholders (or by written consent) all of
his, her or its Investor Shares so as to elect one nominee of Coronado Venture
Fund IV, L.P., or its successor in interest (the "CORONADO NOMINEE"), one
nominee of Solstice Capital, or its successor in interest (the "SOLSTICE
NOMINEE"), one nominee of Arizona Angels Fund I, LLC, or its successor in
interest (the "AZ ANGELS NOMINEE") and one nominee of the Desert Angels, Inc.,
or its successor in interest (the "DESERT ANGELS NOMINEE") as the Series A
Directors. The initial Coronado Nominee shall be Xxxxx X. Xxxxxxxxxx, the
initial Solstice Nominee shall be Xxxxx Xxxxxx, the initial AZ Angels Nominee
shall be Xxxx X. Xxxxxx, and the initial Desert Angels nominee shall be Xxxxx
Xxxxxx, M.D.
(C) In the case of any vacancy (other than a vacancy caused by
removal) in the office of a director occurring among the directors elected by
the holders of a class or series of stock pursuant to this Section 1.2, the
remaining directors so elected by that class or series may by affirmative vote
of a majority thereof (or the remaining director so elected if there be but one,
or if there are no such directors remaining, by the affirmative vote of the
holders of a majority of the shares of that class or series), elect a successor
or successors to hold office for the unexpired term of the director or directors
whose place or places shall be vacant. Any director who shall have been elected
by the holders of a class or series of stock or by any directors so elected as
provided in the immediately preceding sentence hereof may be removed during the
aforesaid term of office, either with or without cause, by, and only by, the
affirmative vote of the holders of the requisite percentage of shares of the
class or series of stock entitled to elect such director or directors, given
either at a special meeting of such shareholders duly called for that purpose or
pursuant to a majority written consent of such shareholders, and any vacancy
thereby created may be filled by the holders of the requisite percentage of
shares of the class or series of stock entitled to elect the removed director or
directors, given at such special meeting or pursuant to such majority written
consent.
1.3 LEGEND.
(A) Concurrently with the execution of this Agreement, there shall be
imprinted or otherwise placed, on certificates representing the Investor Shares
the following restrictive legend (the "Legend"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF A VOTING AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS
ON THE VOTING OF THE SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING
ANY INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO AND SHALL
BECOME BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH
VOTING AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS
CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS
PRINCIPAL PLACE OF BUSINESS."
(B) The Company agrees that, during the term of this Agreement, it
will not remove, and will not permit to be removed (upon registration of
transfer, reissuance of otherwise), the Legend from any such certificate and
will place or cause to be placed the Legend on any new certificate issued to
represent Investor Shares theretofore represented by a certificate carrying the
Legend.
1.4 SUCCESSORS. The provisions of this Agreement shall be binding upon the
successors in interest to any of the Investor Shares. The Company shall not
permit the transfer of any of the Investor Shares on its books or issue a new
certificate representing any of the Investor Shares unless and until the person
to whom such security is to be transferred shall have executed a written
agreement, substantially in the form of this Agreement, pursuant to which such
person becomes a party to this Agreement and agrees to be bound by all the
provisions hereof as if such person were an Investor.
1.5 OTHER RIGHTS. Except as provided by this Agreement or any other
agreement entered into in connection with the transactions contemplated by the
Purchase Agreement, each Investor shall exercise the full rights of a holder of
capital stock of the Company with respect to the Investor Shares.
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2. TERMINATION.
2.1 For so long as holders of the Investor Shares are entitled to elect the
Series A Directors pursuant to the Restated Certificate or applicable law, this
Agreement shall continue in full force and effect from the date hereof through
the earliest of the following dates, on which date it shall terminate in its
entirety:
(A) the Two Year IPO Anniversary; or
(B) the date as of which the parties hereto terminate this Agreement
by written consent of the Company and holders of at least seventy-five percent
(75%) of the Investor Shares, voting as a single class on an as-if-converted to
Common Stock basis.
3. MISCELLANEOUS.
3.1 OWNERSHIP. Each party represents and warrants to the other parties
hereto that (a) such party now owns the shares of capital stock of the Company
as set forth in this Agreement, free and clear of liens or encumbrances, and has
not, prior to or on the date of this Agreement, executed or delivered any proxy
or entered into any other voting agreement or similar arrangement other than one
which has expired or terminated prior to the date hereof, and (b) such party has
full power and capacity to execute, deliver and perform this Agreement, which
has been duly executed and delivered by, and evidences the valid and binding
obligation of, such party enforceable in accordance with its terms.
3.2 FURTHER ACTION. If and whenever any shares of capital stock of the
Company, subject to this Agreement, are sold, the parties or the personal
representatives of the parties shall do all things and execute and deliver all
documents and make all transfers, and cause any transferee of the parties to do
all things and execute and deliver all documents, as may be necessary to
consummate such sale consistent with this Agreement.
3.3 SPECIFIC PERFORMANCE. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
or to their heirs, personal representatives, or assigns by reason of a failure
of another party to perform any of the obligations under this Agreement and
agree that the terms of this Agreement shall be specifically enforceable. If any
party hereto or its heirs, personal representatives, or assigns institutes any
action or proceeding to specifically enforce the provisions hereof, any person
against whom such action or proceeding is brought hereby waives the claim or
defense therein that such party or such personal representative has an adequate
remedy at law, and such person shall not offer in any such action or proceeding
the claim or defense that such remedy at law exists.
3.4 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely in the State of Delaware.
3.5 AMENDMENT OR WAIVER. This Agreement may be amended (or provisions of
this Agreement waived) only by an instrument in writing signed by (a) the
Company, and (b) holders of at least seventy-five percent (75%) of the Investor
Shares, voting as a single class on an as-if-converted to Common Stock basis.
Any amendment or waiver so effected shall be binding upon the Company, each of
the parties hereto and any assignee of any such party.
3.6 SEVERABILITY. In case any provision of this Agreement shall be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
3.7 SUCCESSORS. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, assigns,
administrators, executors and other legal representatives.
3.8 ADDITION OF INVESTORS. Notwithstanding anything to the contrary
contained herein, if the Company shall issue additional shares of its Preferred
Stock pursuant to the Purchase Agreement, any purchaser of such shares of
Preferred Stock may become a party to this Agreement without the consent of any
other party hereto
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except the Company by executing and delivering an additional counterpart
signature page to this Agreement and shall be deemed an "INVESTOR" hereunder.
3.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
3.10 WAIVER. No waivers of any breach of this Agreement extended by any
party hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
3.11 ATTORNEY'S FEES. In the event that any suit or action is instituted to
enforce any provision in this Agreement, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
3.12 NOTICES. Any notices required in connection with this Agreement 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 electronic mail or
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 notification of receipt. All notices shall be
addressed to the holder appearing on the books of the Company or at such address
as such party may designate by ten (10) days advance written notice to the other
parties hereto.
3.13 ENTIRE AGREEMENT. This Agreement and the Exhibits hereto, along with
the Purchase Agreement and each of the Exhibits thereto, constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof 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.
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED VOTING AGREEMENT as of the date first above written.
COMPANY:
IMARX THERAPEUTICS, INC.
By: /s/ Xxxx Xxxxx
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Xxxx X. Xxxxx, M.D.
Its: Chief Executive Officer
0000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxx@xxxxx.xxx
Attn: Xxxx Xxxxxxx, CFO
INVESTORS:
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Name of Entity (if applicable):
By:
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Print Individual Name:
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Print Title (if applicable):
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Address:
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Telephone:
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Fax:
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Email:
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