SECURITIES PURCHASE AND SUBSCRIPTION AGREEMENT
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EXHIBIT
99.1
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SECURITIES
PURCHASE AND SUBSCRIPTION
AGREEMENT
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SECURITIES
PURCHASE AND SUBSCRIPTION AGREEMENT
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") IN RELIANCE ON EXEMPTION THEREFROM PROVIDED BY SECTION
4(2) OF
THE SECURITIES ACT, NOR HAVE SUCH SECURITIES BEEN QUALIFIED WITH ANY STATE
SECURITIES ADMINISTRATOR IN RELIANCE ON SIMILAR EXEMPTIONS.
THIS
SECURITIES PURCHASE AGREEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR
SOLICITATION OF AN OFFER TO BUY THE SECURITIES IN ANY JURISDICTION IN WHICH
SUCH
OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE SECURITIES ARE BEING SOLD FOR
INVESTMENT PURPOSE ONLY AND MAY NOT BE TRANSFERRED, RESOLD OR OFFERED FOR
RESALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT
OR AN EXEMPTION THEREFROM. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY
ANY
FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE,
THE
FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY
OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THIS
SECURITIES PURCHASE AND SUBSCRIPTION AGREEMENT (this "Agreement") effective
as
of May 31, 2007, by and between SOLARIS OPPORTUNITY FUND, L.P.,
a Delaware limited partnership (the “Purchaser”), and IMAGIN
MOLECULAR CORPORATION., a publicly-owned Delaware corporation (the
“Company”).
RECITALS
WHEREAS,
The Company is a publicly-owned Delaware corporation with a class of common
stock, par value $0.001 per share (the “Common Stock”) registered under Section
12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
and
WHEREAS,
the Company desires to offer and Solaris desires to purchase and subscribe
for
20,000,000 shares of the Company’s Common Stock (the “Shares”), pursuant to the
terms and conditions set forth herein;
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual
promises, representations, warranties and covenants hereinafter set forth
and
for other good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1.
Purchase and Sale. Pursuant to the terms and conditions
set forth in this Agreement, on the Closing Date (as hereinafter defined),
the
Company will issue, sell, assign, convey and deliver to the Purchaser, free
and
clear of all liens, pledges, security, interests,options encumbrances, charges,
agreements or claims of any kind whatsoever (collectively, “Liens”), and the
Purchaser will purchase and accept all of the Company’s right, title and
interest to the Shares.
2.
Purchase
Price. The total consideration to be paid by the Purchaser to the
Company for the Shares shall be Four Hundred Thousand Dollars ($400,000)
(the
“Purchase Price”) in the form of check or wire transfer in favor of the Company
on the Closing Date.
3.
Closing,
Delivery and Payment. Subject to the terms and conditions herein, the
closing of the transactions contemplated hereby (the "Closing"), shall take
place upon delivery of the Purchase Price (the “Closing Date”).
4.
Representations
and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Company as follows (which representations
and
warranties are supplemented by the Purchaser's filings under the Securities
Exchange Act of 1934, as amended (collectively, the "Exchange Act
Filings").
4.1 Organization,
Good Standing and Qualification. The Purchaser is a
limited partnership duly organized, validly existing and in good standing
under
the laws of the State of Delaware. The Purchaser has the corporate
power and authority to own and operate its properties and assets, to execute
and
deliver this Agreement and all other agreements related to this Agreement
and
referred to herein, and to carry out the provisions of this Agreement and
the
Related Agreements and to carry on its business as presently
conducted. The Purchaser is duly qualified and is authorized to do
business and is in good standing as a foreign corporation, in all jurisdictions
in which the nature of its activities and of its properties (both owned and
leased) makes such qualification necessary.
4.2 Authorization;
Binding Obligations. All corporate action on the part of the
Purchaser (including the respective officers and directors) necessary for
the
authorization of this Agreement, the performance of all obligations of the
Purchaser hereunder at the Closing, when executed and delivered and to the
extent it is a party thereto, will be valid and binding obligations of the
Purchaser, enforceable in accordance with their terms, except:
(a) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or
other laws of general application affecting enforcement of creditors' rights;
and
(b) general
principles of equity that restrict the availability of equitable or legal
remedies.
4.3 Investment
Representations. The Purchaser represents to the Company
that:
(a) Accredited
Purchaser. The Purchaser is an "accredited investor" as that term is defined
in
Rule 501(a) of Regulation D. Purchaser has not been organized for the purpose
of
investing in securities of the Company, although such investment is consistent
with its purposes.
(b) Access
to Information. The Purchaser has been granted the opportunity to conduct
a full
and fair examination of the records, documents and files of the Company,
to ask
questions of and receive answers from representatives of the Company, its
officers, directors, employees and agents concerning the terms and conditions
of
this offering, the Company and its business and prospects, and to obtain
any
additional information which the Purchaser deems necessary to verify the
accuracy of the information received.
(c) Capability
to Evaluate. The Purchaser is capable of evaluating the merits and risks
of the
prospective investment. The Purchaser recognizes that investment in the Shares
involves certain risks, including the potential loss of the Purchaser's
investment therein, and the Purchaser understands all of the Risk Factors
set
forth in the Company’s filings with the Commission, which are hereby
incorporated by reference. The Purchaser acknowledges that it has the ability
to
bear the economic risk of its investment pursuant to this
Agreement.
(d) Illiquidity.
The Purchaser is aware that there are legal and practical limits on the
Purchaser's ability to sell or dispose of the Shares, and, therefore, that
the
Purchaser must bear the economic risk of the investment for an indefinite
period
of time.
(e) Investment
Purpose. The Purchaser is acquiring the Shares for its own account for
investment only and not with a present view towards the public sale or
distribution thereof, except pursuant to sales registered under the Securities
Act.
(f) Reliance
on Exemptions. The Purchaser understands that the Shares are being offered
and
sold to it in reliance upon specific exemptions from the registration
requirements of United States federal and state securities laws and that
the
Company is relying upon the truth and accuracy of, and the Purchaser's
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Purchaser set forth herein in order to determine
the
availability of such exemptions and the eligibility of the Purchaser to acquire
the Shares.
(g) Legends.
The Purchaser understands that the certificates for the Shares, until such
time
as they shall been registered under the Securities Act, may bear a restrictive
legend in substantially the following form (and a stop-transfer order may
be
placed against transfer of the certificates for such Shares):
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"The
securities represented by this certificate have not been registered
under
the Securities Act of 1933, as amended. The securities have
been acquired
for investment and may not be sold, transferred or assigned
in the absence
of an effective registration statement for the securities under
said Act,
or an opinion of counsel, in form, substance and scope reasonably
acceptable to the Company, that registration is not required
under said
Act or unless sold pursuant to Rule 144 under said Act."
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The
legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Security upon which
it is
stamped, if, unless otherwise required by applicable state securities laws,
(a)
the sale of such Security is registered under the SecuritiesAct, or (b) such
holder provides the Company with an opinion of counsel, in form, substance
and
scope reasonably acceptable to the Company, to the effect that a public sale
or
transfer of such Security may be made without registration under the Securities
Act or (c) such holder provides the Company with reasonable assurances that
such
Security can be sold pursuant to Rule 144 under the Securities Act (or a
successor rule thereto) without any restriction as to the number of Shares
acquired as of a particular date that can then be immediately sold. The
Purchaser agrees that it will sell all Shares, including those represented
by a
certificate(s) from which the legend has been removed, only in compliance
with
all applicable securities laws.
5.
Representations and Warranties of the Company. The Company
hereby represents and warrants to the Purchaser as follows (such representations
and warranties do not lessen or obviate the representations and warranties
of
the Purchaser set forth in this Agreement):
5.1 Requisite
Power and Authority. The Company has all necessary power and
authority under all applicable provisions of law to execute and deliver this
Agreement and to carry out their provisions. All action on the Company's
part
required for the lawful execution and delivery of this Agreement has been
or
will be effectively taken prior to the Closing. Upon their execution and
delivery, this Agreement will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except:
(a) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or
other laws of general application affecting enforcement of creditors' rights;
and
(b) as
limited by general principles of equity that restrict the availability of
equitable and legal remedies.
5.2 Registration
Rights. If at any time prior to the second anniversary of this
Agreement, or from time to time the Company shall determine to register any
of
its securities, either for its own account or the account of security holders,
other than a registration relating solely to employee benefit plans or a
registration on Form S-4, the Company will include in such registration (and
any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Shares specified in a written request
to
the Company, made within twenty (20) calendar days after receipt of such
written
notice from the Company, by the Purchaser.
6.
Covenants of the Company. The Company covenants and agrees
with the Purchaser as follows:
6.1 Confidentiality. The
Company agrees that it will not disclose, and will not include in any public
announcement, the name of the Purchaser, unless expressly agreed to by the
Purchaser or unless and until such disclosure is required by law or applicable
regulation, and then only to the extent of such requirement.
6.2 Non-Public
Information. The Company agrees not to effect any sales in
the shares of the Purchaser's Common Stock while in possession of material,
non-public information regarding the Purchaser if such sales would violate
applicable securities law.
7.
Covenants of the Purchaser and the Company Regarding
Indemnification.
7.1 Purchaser
Indemnification. The Purchaser agrees to indemnify, hold
harmless, reimburse and defend the Company, each of the Company's officers,
directors, agents, affiliates, control persons, and principal shareholders,
against any claim, cost, expense, liability, obligation, loss or damage
(including reasonable legal fees) of any nature, incurred by or imposed upon
the
Company which results, arises out of or is based upon: (i) any misrepresentation
by the Purchaser or breach of any warranty by the Purchaser in this Agreement;
or (ii) any breach or default in performance by the Purchaser of any covenant
or
undertaking to be performed by the Purchaser hereunder or any other agreement
entered into by the Purchaser and the Company relating hereto or
thereto.
7.2 Company's
Indemnification. The Company agrees to indemnify, hold
harmless, reimburse and defend the Purchaser and each of the Purchaser's
officers, directors, agents, affiliates, control persons and principal
shareholders, at all times against any claim, cost, expense, liability,
obligation, loss or damage (including reasonable legal fees) of any nature,
incurred by or imposed upon the Purchaser which results, arises out of or
is
based upon: (i) any misrepresentation by the Company or breach of any
warranty by the Company in this Agreement or in any exhibits or schedules
attached hereto or any Related Agreement; or (ii) any breach or default in
performance by the Company of any covenant or undertaking to be performed
by the
Company hereunder, or any other agreement entered into by the Purchaser and
the
Company relating hereto.
8.
Miscellaneous.
8.1 Governing
Law/Arbitration. THIS AGREEMENT AND ALL MATTERS CONNECTED
WITH THE PERFORMANCE THEREOF SHALL BE CONSTRUED, INTERPRETED, AND GOVERNED
IN
ALL RESPECTS BY THE LAWS OF THE STATE OF DELAWARE. THE PURCHASER AND
THE COMPANY AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY ALLEGED BREACH HEREOF SHALL BE SETTLED
EXCLUSIVELY BY ARBITRATION IN NEW YORK, NEW YORK PURSUANT TO THE RULES OF
THE
AMERICAN ARBITRATION ASSOCIATION. IF THE TWO PARTIES CANNOT JOINTLY
SELECT A SINGLE ARBITRATOR TO DETERMINE THE MATTER, ONE ARBITRATOR SHALL
BE
CHOSEN BY EACH PARTY (OR, IF A PARTY FAILS TO MAKE A CHOICE, BY THE AMERICAN
ARBITRATION ASSOCIATION ON BEHALF OF SUCH PARTY) AND THE TWO ARBITRATORS
SO
CHOSEN WILL SELECT A THIRD. THE DECISIONS OF THE SINGLE ARBITRATOR
JOINTLY SELECTED BY THE PARTIES, OR, IF THREE ARBITRATORS ARE SELECTED, THE
DECISION OF ANY TWO OF THEM, WILL BE FINAL AND BINDING UPON THE PARTIES AND
THE
JUDGMENT OF A COURT OF COMPETENT JURISDICTION MAY BE ENTERED
THEREON. FEES OF THE ARBITRATORS AND COSTS OF ARBITRATION (INCLUDING
ATTORNEYS’ FEES) SHALL BE BORNE BY THE PARTIES IN SUCH MANNER AS SHALL BE
DETERMINED BY THE ARBITRATOR OR ARBITRATORS.
8.2 Survival. The
representations, warranties, covenants and agreements made herein shall survive
any investigation made by the Company and the closing of the transactions
contemplated hereby to the extent provided therein. All statements as to
factualmatters contained in any certificate or other instrument delivered
by or
on behalf of the Purchaser pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties
by the
Purchaser hereunder solely as of the date of such certificate or
instrument.
8.3 Successors. Except
as otherwise expressly provided herein, the provisions hereof shall inure
to the
benefit of, and be binding upon, the successors, heirs, executors and
administrators of the parties hereto and shall inure to the benefit of and
be
enforceable by each person who shall be a holder of the Securities from time
to
time, other than the holders of Common Stock which has been sold by the Company
pursuant to Rule 144 or an effective registration statement. The
Company may not assign its rights hereunder to a competitor of the
Purchaser.
8.4 Entire
Agreement. This Agreement and the other documents delivered
pursuant hereto constitute 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.
8.5 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.
8.6 Amendment
and Waiver.
(a) This
Agreement may be amended or modified only upon the written consent of the
Purchaser and the Company.
(b) The
obligations of the Purchaser and the rights of the Company under this Agreement
may be waived only with the written consent of the Company.
(c) The
obligations of the Company and the rights of the Purchaser under this Agreement
may be waived only with the written consent of the Purchaser.
8.6 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 or the Related Agreements,
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
therein, or of or in any similar breach, default or noncompliance thereafter
occurring. All remedies, either under this Agreement or the Related
Agreements, by law or otherwise afforded to any party, shall be cumulative
and
not alternative.
8.7 Notices. 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) three
(3) business 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.
8.8 Attorneys'
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.
8.9 Titles
and Subtitles. The titles of the sections and subsections of this
Agreement are for convenience of reference only and are not to be considered
in
construing this Agreement.
8.10 Facsimile
Signatures; Counterparts. This Agreement may be executed by
facsimile signatures and in any number of counterparts, each of which shall
be
an original, but all of which together shall constitute one
instrument.
8.11 Broker's
Fees. Each party hereto represents and warrants that no agent,
broker, investment banker, person or firm acting on behalf of or under the
authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection
with
the transactions contemplated herein. Each party hereto further
agrees to indemnify each other party for any claims, losses or expenses incurred
by such other party as a result of the representation in this Section 11.12
being untrue.
8.12 Construction. Each
party acknowledges that its legal counsel participated in the preparation
of
this Agreement and the Related Agreements and, therefore, stipulates that
the
rule of construction that ambiguities are to be resolved against the drafting
party shall not be applied in the interpretation of this Agreement to favor
any
party against the other.
IN
WITNESS WHEREOF,
the parties hereto have executed the Securities Purchase Agreement as of
the
date set forth in the first paragraph hereof.
| SOLARIS OPPORTUNITY, FUND, L.P. | IMAGIN MOLECULAR CORPORATION | |||
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By:
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Managing
Member
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Chief
Financial Officer
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