0001477932-16-013904.txt : 20161201 0001477932-16-013904.hdr.sgml : 20161201 20161201155655 ACCESSION NUMBER: 0001477932-16-013904 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20161110 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20161201 DATE AS OF CHANGE: 20161201 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MANHATTAN SCIENTIFICS INC CENTRAL INDEX KEY: 0001099132 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS ELECTRICAL MACHINERY, EQUIPMENT & SUPPLIES [3690] IRS NUMBER: 850460639 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-28411 FILM NUMBER: 162028240 BUSINESS ADDRESS: STREET 1: THE CHRYSLER BUILDING STREET 2: 405 LEXINGTON AVENUE, 26TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10174 BUSINESS PHONE: 212-541-2405 MAIL ADDRESS: STREET 1: THE CHRYSLER BUILDING STREET 2: 405 LEXINGTON AVENUE, 26TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10174 8-K 1 mhtx_8k.htm FORM 8-K mhtx_8k.htm


UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of the Securities and Exchange Act of 1934

 

Date of Report (Date of earliest reported): November 10, 2016

 

MANHATTAN SCIENTIFICS, INC.

(Exact name of registrant as specified in charter)

 

Delaware

000-28411

85-0460639

(State or Other Jurisdiction of
Incorporation or Organization)

(Commission
File Number)

(IRS Employer
Identification No.)

 

The Chrysler Building

405 Lexington Avenue, 26th Floor

New York, New York, 10174

(Address of Principal Executive Offices) (Zip Code)

 

Registrant’s Telephone Number, including area code: (212) 541-2405

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

  

 

 
 
 

 

Item 1.01 Entry Into a Material Definitive Agreement.

 

Senior Scientific, LLC, a New Mexico limited liability company (“Senior Scientific”) and a wholly owned subsidiary of Manhattan Scientifics, Inc. (the “Company”) merged with and into Imagion Biosystems, Inc., a Nevada company (“Imagion”) on November 17, 2016. Following the merger, Imagion held all of the liabilities, obligations and assets of Senior Scientific and the Company continued as the sole equity holder of Imagion.

 

On November 22, 2016, Imagion issued a Promissory Note in the principal amount of $6,900,000 to the Company (the “Intercompany Note”) payable on the one year anniversary. The Intercompany Note does not accrue interest, provided, however, in the event of a default, interest shall accrue at 10% per annum. Upon the completion of the partial buyout and replacement of the Senior Notes (as defined below) held by the Senior Lenders (as defined below) as set forth in the Spinout Approval, the Intercompany Note shall automatically be equal to $250,000 (the “Minimum Principal Balance”) plus $1. All obligations of Imagion to the Company under the Intercompany Note shall be subordinate to all obligations of Imagion under the Convertible Notes (together with any replacement notes issued therefor, the “Senior Notes”) issued by Imagion or its predecessor to Raymond A. Mason, William B. Jones, and Ferdinand J. Crovato Trust (together, the “Senior Lenders”). Further, upon the approval of the registration statement for Imagion’s Initial Public Offering (the “Effective Date”), Imagion shall convert the principal and interest in excess of the Minimum Principal Balance for shares of Imagion’s common stock equal to the amount of shares that would cause the sum of (a) all shares of Imagion’s common stock issued to the Company prior to the Effective Date and (b) all shares of Imagion’s common stock issued to the Company upon conversion of the Intercompany Note, to equal 50.1% of Imagion’s total number of common shares issued or issuable on a fully diluted basis; provided, however, if the preceding sum is greater than 50.1% of Imagion’s total number of common shares issued or issuable on a fully diluted basis, the excess balance shall be converted into one share of Imagion’s common stock. Upon the completion of the Imagion’s Initial Public Offering, Imagion shall convert the Minimum Principal Balance and all other amounts due for interest for shares of Imagion’s common stock at a price per share equal to the price paid by investors in Imagion’s Initial Public Offering; provided, however, Imagion may, at its discretion, pay the Company the Minimum Principal Balance and all other amounts due in cash.

 

On November 1, 2016, the Company, Senior Scientific and the Senior Lenders entered into a Spinout Approval whereby the Senior Lenders approved the merger of Senior Scientific into Imagion. Further, the Senior Lenders have agreed that upon receipt of an aggregate payment of $2,000,000 by Imagion to the Senior Lenders, the Senior Notes shall be amended, restated and replaced by a Convertible Promissory Note (the “Replacement Notes”) in an amount equal to all amounts owed under the Senior Notes less $2,000,000. The Replacement Notes shall continue to be guaranteed by the Company and the collateral securing the Senior Notes. Further, the Senior Notes maturity date was extended to April 3, 2018.

 

On November 10, 2016, Imagion, the Company and Robert Romeo Proulx and Tracey Jane Proulx Revocable Trust (the “Interim Investor”) entered into a Note Purchase Agreement pursuant to which the Interim Investor invested $100,000 in consideration of Promissory Notes issued by Imagion (the “Interim Imagion Note”) payable on the one year anniversary. The Interim Investor or other investors may invest up to a total of $500,000 under the Note Purchase Agreement. The Interim Imagion Note accrues interest at the rate of 8% per annum, provided, however, in the event of a default, interest shall accrue at 10% per annum. The Interim Imagion Note is subordinate to the Senior Notes. The Company, Imagion and the Interim Investor also entered an Irrevocable Proxy as well as a Voting Agreement whereby the Company granted the Interim Investors a right to vote its Imagion shares to carry out the spinout plan and the parties agreed to vote their Imagion shares to provide for one director of Imagion to be appointed by the Company and four directors to be appointed by the Interim Investors.

 

 
2
 

 

Item 9.01 Financial Statements and Exhibits

 

Exhibit Number

Description

 

10.1

Promissory Note isssued to Manhattan Scientifics, Inc. By Imagion Biosystems, Inc. In the principal amount of $6,900,000 (with form of voting agreement)

10.2

Spinout Approval dated September 27, 2016 entered between Manhattan Scientifics, Inc., Imagion Biosystems, Inc. and Raymond A. Mason, William B. Jones, and Ferdinand J. Crovato Trust

10.3

Form of Note Purchase Agreement by and between Manhattan Scientifics, Inc., Imagion Biosystems, Inc. and Interim Investor

10.4

Form of Promissory Note issued by Imagion Biosystems, Inc. to Interim Investor

10.5

Irrevocable Proxy Manhattan Scientifics, Inc. and Imagion Biosystems, Inc.

  

 
3
 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 MANHATTAN SCIENTIFICS, INC.
    
Date: December 1, 2016By:/s/ Emmanuel Tsoupanarias
New York, New York

Name:

Emmanuel Tsoupanarias 
 Title:Chief Executive Officer 

 

 

4

 

EX-10.1 2 mhtx_ex101.htm PROMISSORY NOTE mhtx_ex101.htm

EXHIBIT 10.1

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT AND APPLICABLE LAWS OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS AND AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE. THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 2 AND SECTION 4 OF THIS NOTE.

 

THE SECURITIES REPRESENTED HEREBY ARE SUBORDINATED TO THE SENIOR DEBT (AS DEFINED HEREIN) IN ACCORDANCE WITH THE TERMS HEREOF.

 

Imagion Biosystems, Inc.

PROMISSORY NOTE

 

$6,900,000

Albuquerque, NM

November 22, 2016

 

Imagion Biosystems, Inc., a Nevada corporation (the “Company”), for value received hereby, namely cash advances from Manhattan Scientifics, Inc. to the Company’s predecessor Senior Scientific LLC, prior to issuance of this Note, promises to pay to the individual or entity listed below, or registered assigns (the “Holder”), the sum of 6,900,000 dollars in accordance with the terms of this convertible promissory note (the “Note”). Payment for all amounts due hereunder shall be made by wire transfer of immediately available funds, in lawful tender of the United States, to an account designated in writing by the Holder.

 

The following is a statement of the rights of the Holder of this Note and the conditions to which this Note is subject, and to which the Holder hereof, by the acceptance of this Note, agrees:

 

1. Definitions. As used in this Note, the following terms, unless the context otherwise requires, have the following meanings:

 

(i) “Business Day” means any day except Saturday, Sunday, any day which shall be a federal legal holiday in the United States, or any day on which banking institutions in New York City are authorized or required by law or other governmental action to close.

 

(ii) “Holder” when the context refers to a holder of this Note, shall mean Manhattan Scientifics, Inc. or any person who shall at the time be the registered holder of this Note.

 

(iii) “Issuance Date” means the date of this Note.

 

(iv) “Minimum Principal Balance” shall mean $250,000.

 

2. Interest; Repayment of the Note.

 

2.1 This Note shall not accrue interest; provided that, commencing upon the occurrence of any Event of Default and so long as any Event of Default exists, interest on this Note shall accrue at the rate of ten percent (10%) per annum; provided further that the interest rate shall not exceed the maximum amount of interest permitted to be charged under applicable law.

 

 
1
 

 

2.2 All principal amounts advanced hereunder and all interest accrued shall mature one year after the Issuance Date, at which time all principal and other amounts outstanding under this Note shall be due and payable. In addition, all amounts outstanding hereunder shall be due and payable on the date upon which the repayment of this Note is accelerated upon an Event of Default pursuant to Section 10. All payments hereunder shall be made in lawful money of the United States of America and will be credited first to interest, fees, costs and expenses then due and the remainder to the principal amount of this Note.

 

2.3 Subject to the provisions of Section 3, the Company shall have the right to prepay this Note at any time.

 

2.4 Upon the completion of the partial buyout and replacement of the Notes held by the Senior Lenders as set forth in the Spinout Approval, the Principal Amount of this Note shall automatically be equal to the Minimum Principal Balance plus $1.

 

3. Subordination; Voting Agreement. All obligations of the Company under this Note, the Note Purchase Agreement and any other agreement or other document executed in connection therewith (collectively, the “Note Transaction Documents”), including the Principal Amount, accrued interest and fees and expenses due to the Holder pursuant to this Note shall be subordinate to all obligations of the Company under the Convertible Notes (together with any replacement notes issued therefor, the “Senior Notes”) issued by the Company’s predecessor, Senior Scientific, LLC, to Raymond A. Mason, William B. Jones, and Ferdinand J. Crovato Trust (together and including their successors and assigns, the “Senior Lenders”), the Convertible Note Purchase Agreement, dated as of April 3, 2013, as amended (the “Senior Agreement”), and the other Transaction Documents (as defined in the Senior Agreement), as amended, including all obligations of the Company under any promissory notes issued in amendment, restatement or replacement of the Senior Notes (together, the “Senior Debt”), until all of the Senior Debt shall have been indefeasibly paid in full in cash and extinguished and all amounts due to the Senior Lenders have been repaid. Any existing and hereafter acquired liens and security interests of the Senior Lenders in any collateral securing all or any portion of the Senior Debt shall be senior, regardless of the time or method of perfection, to all existing and hereafter acquired liens and security interests, if any, of the Holder of this Note (or any agent therefor) in the collateral, if any, securing all or any portion of the obligations hereunder. The subordination is for the benefit of, and shall be enforceable directly by, the Senior Lenders, and that each Senior Lender shall be deemed to have consented to the issuance of this Note by the Company in reliance upon the covenants and provisions contained in this Note. Until the Senior Debt has been indefeasibly paid in full in cash and all amounts due to the Senior Lenders have been repaid, neither the Company nor any other Person on its behalf shall make any payment of any kind or character with respect to any obligations on this Note or the Note Transaction Documents. In the event that any payment is received by the Holder in violation of the provisions hereof, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the Senior Lenders for application to the payment of Senior Debt. In addition, until the Senior Debt has been indefeasibly paid in full in cash and extinguished and all amounts due to the Senior Lenders have been repaid, the Holder shall not take any collection action or enforcement action, or exercise any rights or remedies, with respect to this Note or any Note Transaction Document. The Senior Lenders shall be deemed third party beneficiaries of this Section 3 with the power to enforce such provisions from time to time. In connection with this Note, the Holder agrees to enter into the Voting Agreement, attached as Exhibit A, with the Company and its investors.

 

4. Conversion.

 

4.1 Conversion Prior to Initial Public Offering. Upon the approval of the registration statement for the Company’s Initial Public Offering (the “Effective Date”), the Company shall convert the principal balance of this Note and all other amounts due for interest greater than the Minimum Principal Balance (the “Excess Principal Balance”) for shares of the Company’s common stock equal to the amount of shares that would cause the sum of (a) all shares of the Company’s common stock issued to Manhattan Scientifics, Inc. prior to the Effective Date (without regard to whether Manhattan Scientifics still owns such shares), and (b) all shares of the Company’s common stock issued to Holder upon conversion of this Note, to equal 50.1% of the Company’s total number of common shares issued or issuable on a fully diluted basis; provided, however, if the preceding sum is greater than 50.1% of the Company’s total number of common shares issued or issuable on a fully diluted basis, the Excess Balance shall be converted into one share of the Company’s common stock.

 

 
2
 

 

4.2 Conversion Upon Initial Public Offering. Upon the completion of the Company’s Initial Public Offering, the Company shall convert the Minimum Principal Balance and all other amounts due for interest for shares of the Company’s common stock at a price per share equal to the price paid by investors in the Company’s Initial Public Offering; provided, however, the Company may, at its discretion, pay the Holder the Minimum Principal Balance and all other amounts due in cash.

 

5. Negative Covenants.

 

5.1 Other than the indebtedness and financing described in Exhibit B, the Company shall not incur or agree to incur any indebtedness for borrowed money or financed equipment, or any sort of trade debt, other than subordinated indebtedness on terms satisfactory to the Holder which does not exceed $50,000 in the aggregate from a single transaction or a series of related transactions and which does not exceed $250,000 in the aggregate in any 12-month period, without first obtaining the written approval of the Holder.

 

5.2 Other than the reservation of 15% of the Company’s shares as of the date hereof for an employee stock incentive plan (including shares corresponding to options issued under such plan), the issuance of common stock described in the Spinout Approval, and the issuance of equity in accordance with the bridge financing described above and the issuance of equity contemplated under the Senior Notes, the Company shall not without the prior written consent of the Holder issue additional equity.

 

5.3 The Company shall not increase executive compensation from the current compensation levels as of the date hereof.

 

5.4 Unless the Holder shall otherwise consent in writing, the Company shall not, directly or indirectly (a) amend its charter documents in any manner.

 

6. Events of Default. Each of the following events shall constitute a default under this Note (each an “Event of Default”):

 

(a) failure by the Company to pay the principal amount of this Note on the date the same becomes due and payable under this Note or any interest or other amounts due under this Note within five (5) days of the date the same becomes due and payable under this Note;

 

(b) any material breach by the Company of any covenant, warranty, representation or other term or condition of this Note, at any time which is not cured within thirty (30) calendar days after the occurrence thereof;

 

(c) the Company shall: (1) make a general assignment for the benefit of its creditors; (2) apply for or consent to the appointment of a receiver, trustee, assignee, custodian, sequestrator, liquidator or similar official for itself or any of its assets and properties; (3) commence a voluntary action for relief as a debtor under the United States Bankruptcy Code; (4) file with or otherwise submit to any governmental authority any petition, answer or other document seeking: (A) reorganization, (B) an arrangement with creditors or (C) to take advantage of any other present or future applicable law respecting bankruptcy, reorganization, insolvency, readjustment of debts, relief of debtors, dissolution or liquidation; (5) file or otherwise submit any answer or other document admitting or failing to contest the material allegations of a petition or other document filed or otherwise submitted against it in any proceeding under any such applicable law; (6) be adjudicated a bankrupt or insolvent by a court of competent jurisdiction; (7) be unable, or admit in writing its inability, to pay its debts as they mature; or (8) take any action for the purpose of effecting any of the foregoing;

 

 
3
 

 

(d) any case, proceeding or other action shall be commenced against the Company for the purpose of effecting, or an order, judgment or decree shall be entered by any court of competent jurisdiction approving (in whole or in part) anything specified in Section 6(c) hereof, or any receiver, trustee, assignee, custodian, sequestrator, liquidator or other official shall be appointed with respect to the Company, or shall be appointed to take or shall otherwise acquire possession or control of all or a substantial part of the assets and properties of the Company, and any of the foregoing shall continue unstayed and in effect for any period of at least sixty (60) days from the date of commencement;

 

(e) default shall occur with respect to any indebtedness for borrowed money of the Company or under any formal debt agreement under which such indebtedness may be issued by the Company, and such default shall continue for more than the period of grace, if any, therein specified, if the aggregate amount of such indebtedness for which such default shall have occurred exceeds $50,000;

 

(f) default shall occur with respect to any contractual obligation of the Company under or pursuant to any contract or lease to which the Company is a party and such default shall continue for more than the period of grace, if any, therein specified, if the aggregate amount of the contractual liability arising out of such default exceeds or is reasonably estimated to exceed $50,000;

 

(g) default by the Company shall occur under any agreement, note, mortgage, security agreement or other instrument evidencing or securing indebtedness that ranks senior in priority to, or pari passu with, the obligations under this Note, and such default shall continue for more than the period of grace, if any, therein specified, if the aggregate amount of such indebtedness for which such default shall have occurred exceeds $50,000; or

 

(h) any material breach by the Company of any covenant, warranty, representation or other term or condition of this Note, at any time which is not cured within the time periods permitted therein or, if no cure period is provided therein, within thirty (30) calendar days after the occurrence thereof;

 

(i) the Company shall liquidate, dissolve or have its existence terminated.

 

7. Remedies. If any Event of Default occurs under Section 6(c) or 6(d) hereof, then the full principal amount of this Note, together with any other amounts outstanding under this Note or any other Note Transaction Document, shall become immediately due and payable in cash without any action on the part of the Holder, and if any other Event of Default occurs, the full principal amount of this Note, together with any other amounts outstanding under this Note or any other Note Transaction Document, to the date of acceleration shall become, at the Holder’s election, immediately due and payable in cash. All Notes for which the full amount hereunder shall have been paid in accordance herewith shall promptly be surrendered to or as directed by the Company. The Holder need not provide and the Company hereby waives any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such declaration may be rescinded and annulled by the Holder at any time prior to payment hereunder and the Holder shall have all rights as a Note holder until such time, if any, as the full payment under this Section 7 shall have been received by it. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon. In addition to the foregoing remedies, upon the occurrence of any Event of Default, the Holder may exercise any other right, power or remedy granted to it by the Note Transaction Documents or otherwise permitted to it by law, either by suit in equity or by action at law, or both.

 

 
4
 

 

8. Assignment. Subject to securities laws, the rights and obligations of the Company and the Holder of this Note shall be binding upon and benefit the successors and assigns of the parties; provided that the Company shall not assign its rights or obligations under this Note without the prior written consent of the Holder.

 

9. Waiver and Amendment. Any provision of this Note may be amended, waived, or modified upon the written consent of the Company and Holder.

 

10. Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if faxed with confirmation of receipt by the sending device or if delivered by internationally recognized overnight courier such as FedEx or DHL, at the respective addresses of the parties as set forth herein. Any party hereto may by notice so given change its address for future notice hereunder. Notice shall conclusively be deemed to have been given when delivered or faxed in the manner set forth above and shall be deemed to have been received when delivered.

 

11. No Stockholder Rights. Nothing contained in this Note shall be construed as conferring upon the Holder or any other person the right to vote or to consent or to receive notice as a stockholder in respect of meetings of stockholders for the election of directors of the Company or any other matters or any rights whatsoever as a stockholder of the Company.

 

12. Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of Nevada, excluding that body of law relating to conflict of laws.

 

13. Waiver. The Company hereby waives demand, notice, presentment, protest, and notice of dishonor.

 

[SIGNATURE PAGE FOLLOWS]

 

 
5
 

 

IN WITNESS WHEREOF, the Company has caused this Note to be issued this 22 day of November 2016.

 

 

Imagion Biosystems, Inc.

 

 

 

 

a Nevada corporation

 

 

 

 

By:

/s/ Bob Proulx

 

Name:

Bob Proulx

 

Title:

director

 

Holder

 

Manhattan Scientifics, Inc.

 

By: /s/ Manny Tsoupanarias                  

 

Manny Tsoupanarias, CEO

 

 
6
 

 

EXHIBIT A

 

Manhattan Scientifics, Inc., (“MSI”) the sole shareholder of Common Stock of Imagion Biosystems, Inc., a Nevada corporation (the “Company”), the Company, and the Investors (the “Investors”) under the Note Purchase Agreement of even date herewith (the “NPA”), agree:

 

Section 1. Recitals. MSI and the Investors desire to enter into this Agreement in accordance with Nevada Law for the purpose of providing for an agreement regarding voting for certain directors of the Company. The execution and performance of this Agreement is a condition for MSI and the Investors to enter the NPA.

 

Section 2. Shares Subject to Agreement. The parties hereto each agree to hold all shares of voting capital stock of the Company registered in their respective names or beneficially owned by them as of the date hereof and any and all other securities of the Company legally or beneficially acquired by each of them after the date hereof (collectively, the “Subject Shares”) subject to, and to vote the Subject Shares in accordance with, the provisions of this Agreement.

 

Section 3. Voting For Certain Directors. At each meeting or pursuant to each consent of the Company’s shareholders for the election of directors, the Board of Directors of the Company will be elected as follows:

 

(a) At each election of directors in which the holders of Common Stock are entitled to elect a director of the Company, the parties will vote all of their respective Subject Shares so as to elect one individual (after election as a director the “MSI Director”) designated by MSI; and so as to elect 4 individuals named by the Interim Investors (after election the “Investor Directors”). The Interim Investors may decide among themselves how to determine individuals to designate, and MSI may accept a communication from any Investor concerning designation of directors as representing the designation of all the Investors, and any Investor making such communication represents and warrants to MSI that such Investor has the right and authority to communicate such designation on behalf of all the Investors.

 

(b) No director designated as provided in this Section 3(a) may be removed without the written consent of the stockholder(s) who or which are entitled to designate such director, and no vacancy caused by the resignation, death or removal of a director designated as provided in this Section 3(a) may be filled without the written consent of the individuals or entities who or which are entitled to designate such director.

 

Section 4. Company Actions

 

(a) The Board and the Interim Investors shall not take any action outside the ordinary course of business or as reasonably required to implement the spinout of the Company. As examples, the Company shall not issue additional debt or equity not contemplated by the Intercompany Note between the Company and MSI, executive compensation shall not be increased, and the Company’s Articles and Bylaws shall not be changed.

 

(b) The Company, MSI, and Interim Investors shall exert their best efforts to implement the transactions contemplated by the Intercompany Note.

 

 
7
 

 

(c) The Company currently owes $2.5 million, excluding current interest, to senior lenders. The Company shall exert its best efforts to retire or convert the senior lenders, which may require issuance of common stock of the Company to the senior lenders or others.

 

(d) The Company shall not issue any stock that is senior to or has any preferences superior to the common stock issued to MSI in connection with the Intercompany Note.

 

(e) The Company shall not issue any stock or stock equivalents (e.g., options, warrants, or convertible instruments) if the cumulative effect of all issuances prior to the IPO would cause MSI’s ownership of the Company to be less than 50.1% of all stock (on a fully diluted basis).

 

(f) The Company will exert its best efforts to list its common stock for sale on the Australian Stock Exchange in an IPO of approximately $10.0 million. In the event of an oversubscription, MSI shall be given first rights to sell up to $2.0 million of its shares in the Company in the IPO as part of the oversubscription to IPO investors at the IPO price (“IPO Sale”), unless the underwriters determine the sale of Company shares owned by MSI will jeopardize the success of the IPO. Other than in connection with the IPO Sale or FCP arranged block trades, MSI (and its shareholder distributees, if applicable) shall be restricted from selling the newly listed shares for the same period as the “Seed” investors per Australian securities laws.

 

(g) After the IPO, the Company’s directors will be elected by Company shareholders at its next meeting of shareholders and MSI, as long as it owns 10% of the common stock of the Company, shall have the right to appoint an observer to the Company’s board of directors. If the Company enters into a licensing or other agreement introduced to a party to the Company by MSI after the date of this Term Sheet, MSI shall be entitled to receive commercially reasonable compensation.

 

Section 5. Termination of Agreement. This Agreement will terminate on the first to occur of: (a) the closing of the first sale of the Company’s Common Stock in a firm commitment, underwritten public offering on the Australian Stock Exchange, or (b) three years after the date hereof.

 

Section 6. Miscellaneous.

 

(a) Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement inure to the benefit of and are binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

 

(b) Governing Law. This Agreement is governed by and is to be construed in accordance with the law of the State of Nevada applicable to agreements made and to be performed in Nevada.

 

(c) Counterparts. This Agreement may be executed in any number of counterparts, each of which is an original and all of which taken together constitute one instrument. Any party may execute this Agreement by executing any such counterpart.

 

 
8
 

 

(d) Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

 

(e) Notices. Unless otherwise provided, any notice and other communications required or permitted by this Agreement will be in writing and will be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by telegram or fax, or 48 hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s address or fax number as set forth on the signature pages hereto or as subsequently modified by written notice.

 

(f) Prevailing Party. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

 

(g) Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and MSI and each Investor.

 

(h) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties will renegotiate such provision in good faith. If the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision will be excluded from this Agreement, (ii) the balance of the Agreement will be interpreted as if such provision were so excluded, and (iii) the balance of the Agreement will be enforceable in accordance with its terms.

 

(i) Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party to this Agreement upon any breach or default of any other party under this Agreement will impair any such right, power or remedy of such party nor will it be construed to be a waiver of any such breach or default, or an acquiescence therein, or in any similar breach or default thereafter occurring; nor will any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring.

 

(j) Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all other written or oral agreements existing between the parties hereto are expressly canceled.

 

<signature page(s) follow>

 

 
9
 

 

Dated: 10 Nov. 2016

 

IMAGION BIOSYSTEMS, INC., a Nevada corporation

 

By:

Name:

Title:

 

MANHATTAN SCIENTIFICS, INC., a Delaware corporation

 

By:

Name:

Title:

 

Investor

 

By:

Name:

Title:

 

Investor

 

By:

Name:

Title:

 

Investor

 

By:

Name:

Title:

 
 
10
 

 

EXHIBIT B

 

The Company may

 

·borrow up to an additional $500,000 (the “Interim Financing”)

 

 

·raise $2,000,000 (the “Note Buyout Financing”) via common equity capital on commercially reasonable terms or via debt in financing which proceeds will be used to pay off a portion of the notes to the senior lenders;

 

 

·raise additional common equity capital not to exceed $3,000,000 (the “Bridge Financing”) on commercially reasonable terms; and

 

 

·execute an IPO on the Australian Stock Exchange

 

 

 

11

 

EX-10.2 3 mhtx_ex102.htm SPINOUT APPROVAL mhtx_ex102.htm

EXHIBIT 10.2

 

SPINOUT APPROVAL

 

This Spinout Approval is dated as of November 1, 2016. Reference is hereby made to that certain Convertible Note Purchase Agreement (the “Agreement”), dated as of April 3, 2013 among Senior Scientific, LLC, a New Mexico limited liability company (the “Company”), and Raymond A. Mason, William B. Jones, and Ferdinand J. Crovato Trust (together, the “Purchasers”) and the Convertible Notes issued by the Company to the Purchasers on or about April 3, 2013, October 1, 2013, April 1, 2014, and October 1, 2014 (all together the “Notes”). The Notes and the Agreement together are the “Transaction Documents”. Capitalized terms used but not defined herein shall have the meanings given them in the Agreement.

 

WHEREAS, Manhattan Scientifics, Inc., the Company’s parent (“MHTX”), intends to merge the Company with a new Nevada corporation (“NewCo”) which will be initially be 100% owned by MHTX (the “Merger”);

 

WHEREAS, MHTX intends that NewCo will borrow, on the terms set forth in the Interim Note attached hereto as Exhibit A (the “Interim Note”), up to an additional $500,000 (the “Interim Financing”) that will be subordinate to the obligations under the Notes in accordance with the terms of the Interim Note for the commercialization of the Company’s technology; and raise $2,000,000 (the “Note Buyout Financing”) via common equity capital on commercially reasonable terms or via debt in financing that will be subordinate to the obligations under the Notes in accordance with the terms consistent with the subordination terms of the Interim Note, which proceeds will be used to pay off a portion of the Notes; and raise additional common equity capital not to exceed $3,000,000 (the “Bridge Financing”) on commercially reasonable terms; and then execute an IPO on the Australian Stock Exchange;

 

WHEREAS, MHTX, the Company, and NewCo desire that the Purchasers approve the Merger, the Interim Financing, the Note Buyout Financing, and the Bridge Financing, and agree to amend the Notes as set forth herein and effective as set forth herein.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

1. Purchasers hereby approve formation of NewCo and the Merger, including the assignment of the Notes to NewCo, and approves the Interim Financing, and waives any default under the Transaction Documents related to the formation of NewCo, the Merger, and the incurrence of the Interim Financing.

 

2. Purchasers hereby agree that, upon repayment of the principal amount of the Notes in the amount of $2,000,000 from the proceeds of the Note Buyout Financing in immediately available funds, in lawful tender of the United States, to account(s) designated in writing by the Purchasers, in amounts pro rata based on their Notes, that the Notes shall be amended, restated and replaced (without novation) with Notes of the form set forth in Exhibit B (the “Replacement Notes”), with each Purchaser receiving a Replacement Note with a principal amount equal to the total principal plus accrued and unpaid interest at the time of replacement, less that portion of the $2,000,000 that was paid to that Purchaser. MHTX shall continue to guaranty the Replacement Notes and the Replacement Notes shall continue to be secured by the collateral securing the Notes (including all assets of NewCo as successor by merger to the Company and all equity of NewCo held by MHTX), and the parties will execute such documents and agreement as Purchasers may request to evidence such continuation, including a joinder and acknowledgment to the Agreement by NewCo, an acknowledgement of Guaranty and Security Agreement by MHTX and amendments to financing statements.

 

 
1
 

 

3. Purchasers agree that maturity of the Notes is extended to April 3, 2018. The Guaranty and Security Agreement issued for the benefit of the Purchasers shall remain in effect until the Notes or any replacement notes have been fully repaid and extinguished. After the Notes and any replacement notes have been fully repaid and extinguished, the Purchasers shall provide MHTX a release.

 

4. Except as expressly described above, this Spinout Approval shall not constitute (a) a modification or an alteration of any of the terms, conditions or covenants of the Transaction Documents all of which remain in full force and effect, or (b) a waiver, release or limitation upon the Purchasers’ exercise of any of its rights and remedies thereunder, all of which are hereby expressly reserved. This Spinout Approval shall not relieve or release the Company in any way from any of its duties, obligations, covenants or agreements under the Transaction Documents or from the consequences of any events of default thereunder, except as expressly described above.

 

5. This Spinout Approval shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware without regard to the principals of conflicts of law thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and Federal courts sitting in the State of Delaware for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court or that such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address in effect for notices to it under this agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.

 

IN WITNESS WHEREOF, the parties hereto have caused this Spinout Approval to be signed by their respective representatives thereunto duly authorized, all as of the date first written above.

 

 COMPANY:

 

 

 

 

 

Senior Scientifics, LLC.

 

    
By:

/s/ Robert Proulx

 

Name:

Robert Proulx 
 Title:

President

 
    

 

Manhattan Scientifics, inc.

 

 

 

 

 

 

By:

/s/ Emmanuel Tsoupanarias

 

 

Name:

Emmanuel Tsoupanarias

 

 

Title:

President

 

 

 
2
 

 
 PURCHASERS:
    
By:

/s/ Raymond A. Mason

 

Name:

Raymond A. Mason

 
   
 By:/s/ William B. Jones 

 

Name:

William B. Jones

 

 

 

 

 

 

By:

/s/ Ferdinand J. Crovato

 

 

Name:

Ferdinand J. Crovato

 

 

TRUSTEE, FERDINAND J. CROVATO TRUST

 

 

 

3

EX-10.3 4 mhtx_ex103.htm FORM OF NOTE PURCHASE AGREEMENT mhtx_ex103.htm

EXHIBIT 10.3

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

This NOTE PURCHASE AGREEMENT (this “Agreement”), is entered into as of 10 Nov. 2016, by and among Imagion Biosystems, Inc., a Nevada corporation (the “Company”), Manhattan Scientifics, Inc., a Delaware corporation and the sole owner of shares of the Company (the “Parent”) and the investors listed on the Investor Signature Pages attached hereto as Exhibit A (collectively, the “Investors”). Each party to this Agreement is referred to herein as a “Party,” and they are referred to collectively as the “Parties.”

 

WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 promulgated thereunder, the Company desires to sell to the Investors, and the Investors desire to purchase from the Company Promissory Notes for a cash purchase price of up to an aggregate principal amount of $500,000; and

 

NOW, THEREFORE, in consideration of the mutual representations, warranties, and covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:

 

Closing” means the closing of the transactions contemplated herein, which shall take place in accordance with the terms of Section 2 of this Agreement.

 

Note” means each Promissory Note in the form attached hereto as Exhibit B.

 

Subscription Amount” means such amount as each Investor is determining to invest on a particular Closing Date hereunder.

 

Transaction Documents” means this Agreement, the Investor Signature Pages attached hereto as Exhibit A, the Note, and all other certificates, documents, agreements, and instruments delivered to the Investor under or in connection with this Agreement.

 

2. SALE AND ISSUANCE OF NOTES; CLOSING; COVENANTS.

 

2.1 Sale and Issuance of Notes. Subject to the terms and conditions of this Agreement and upon receipt of the Subscription Amount, each of the Investors agree to purchase at the Closings, and the Company agrees to sell and issue to each of the Investors at the Closings, its portion of the Notes as set forth in the corresponding Investor Signature Page.

 

2.2 The Closing. The purchase and sale of the Notes shall be consummated at one or more Closings, which are to take place at the Company’s offices, or at such other place as the Parties shall mutually agree, upon the satisfaction of all the conditions to Closing set forth in this Agreement. The “Closing Date” shall be the date that the Investor’s funds—such representing the amount due to the Company for the Subscription Amount—are transmitted by wire transfer to or for the benefit of the Company.

 

2.3 Deliveries.

 

2.3.1. Items to be delivered to the Investor at the Closing by the Company. Each Investor’s obligations under this Agreement at each Closing, as applicable and to the extent not previously delivered, are conditioned upon the following closing conditions and deliveries:

 

2.3.1.1 The Company shall deliver or cause to be delivered to each Investor this Agreement duly executed by the Company;

 

2.3.1.2 The Company shall deliver or cause to be delivered to each Investor the applicable Note(s);

 

 
1
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

2.3.1.3 The Company shall deliver to the Investors an irrevocable proxy of the form in the attached Exhibit, executed by Manhattan Scientifics, Inc., granting the Investors proxy to vote all shares of the Company held

by Manhattan Scientifics, Inc., and a Voting Agreement executed by the Company and by Manhattan Scientifics, Inc. in the form of the attached Exhibit, providing the Investors with the right to designate 4 directors and Manhattan Scientifics, Inc., the power to designate 1 director;

 

2.3.1.4 The representations and warranties of the Company set forth in Section 3 of this Agreement shall be true and correct in all material respects as of the relevant Closing Date, and all obligations, covenants, and agreements of the Company required to be performed at or prior to the relevant Closing Date shall have been performed.

 

2.3.2 Items to be delivered to the Company at the Closing by the Investors. The Company’s obligations under this Agreement and at each Closing, as applicable and to the extent not previously delivered, are conditioned on the following closing conditions and deliveries:

 

2.3.2.1 Each Investor shall deliver or cause to be delivered to the Company and the Parent the Investor Signature Page duly executed by the Investor;

 

2.3.2.2 Each Investor shall deliver or cause to be delivered the Subscription Amount via wire transfer to the Company;

 

2.3.4.3 A Voting Agreement executed by the Investor, in the form of the attached Exhibit, providing the Investors with the right to designate 4 directors and Manhattan Scientifics, Inc., the power to designate 1 director;

 

2.3.2.5 Each Investor’s representations and warranties set forth in Section 4 of this Agreement shall be true and correct in all material respects as of the relevant Closing Date, and all obligations, covenants, and agreements of such Investor required to be performed at or prior to the relevant Closing Date shall have been performed.

 

2.4 Covenants.

 

2.4.1 Affirmative Covenants.

 

2.4.1.1 Within 45 days of the end of each fiscal quarter, the Company shall deliver to the Investors (under appropriate confidentiality restrictions) unaudited quarterly financial reports (balance sheet, income statement and statement of cash flows). In addition, the Company shall permit each Investor to inspect the books and records of the Company on reasonable prior written notice.

 

2.4.1.2 Prior to the initial Closing Date and prior to the commencement of each fiscal year, the Company shall deliver to the Investors a business plan and budget approved by its board of directors. The Company shall operate in accordance with such business plan and shall not materially deviate from such business plan and budget .

 

2.4.1.3 The Company shall preserve and maintain in good standing its existence as a corporation under the laws of the State of Nevada and to comply in all material respects with all applicable federal, state, and local laws and regulations.

 

2.4.1.4 The Company shall as soon as practicable provide notice to the Investors or any fact, event, matter or circumstance that could be expected to have a Material Adverse Effect.

 

2.4.1.5 The Company shall use the proceeds from the Subscription Amount for the payment of expenses related to the Company’s cancer detection technologies and the Company’s general corporate purposes.

 

 
2
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

2.4.2 Negative Covenants.

 

2.4.2.1 The Company shall not incur or agree to incur any indebtedness for borrowed money or financed equipment, or any sort of trade debt, other than subordinated indebtedness on terms satisfactory to the Investors which does not exceed $50,000 in the aggregate from a single transaction or a series of related transactions and which does not exceed $250,000 in the aggregate in any 12-month period, without first obtaining the written approval of the Investors, nor shall the Company voluntarily incur or permit to exist any lien, security interest or other encumbrance on any of the Company’s assets without first obtaining the written approval of the Investors.

 

2.4.2.2 The Company shall not without the prior written consent of the Investors (i) pay any dividend or make any distribution on, or purchase, redeem, or retire, any Units (as defined herein) or any warrants, options, or other rights to reacquire any such Units; (ii) dispose of any assets other than in the ordinary course of business; (iii) issue additional equity or (iv) make any capital expenditure or other investments in assets which are not specifically referenced in the business plan.

 

2.4.2.3 As long as any Note(s) remain outstanding, unless the Investors shall otherwise consent in writing, the Company shall not, directly or indirectly (a) amend its charter documents in any manner that adversely affects any rights of the Investors; or (b) pay dividends on any equity securities of the Company.

 

2.5. Parent relationship. The Parent is not an obligor or guarantor of the Note(s).

 

2.6 Subordination. The Note(s) shall be deemed pari passu to any other note issued pursuant to this Agreement, the date of issuance of such note(s) notwithstanding. All obligations of the Company under the Note(s), this Agreement and any other agreement or other document executed in connection therewith (collectively, the “Note Transaction Documents”), including the Principal Amount, accrued interest and fees and expenses due to the Holder pursuant to the Note(s), shall be subordinate to all obligations of the Company under the Convertible Notes (together with any replacement notes issued therefor, the “Senior Notes”) issued by the Company’s predecessor, Senior Scientific, LLC, to Raymond A. Mason, William B. Jones, and Ferdinand J. Crovato Trust (together and including their successors and assigns, the “Senior Lenders”), the Convertible Note Purchase Agreement, dated as of April 3, 2013, as amended (the “Senior Agreement”), and the other Transaction Documents (as defined in the Senior Agreement), as amended, including all obligations of the Company under any promissory notes issued in amendment, restatement or replacement of the Senior Notes (together, the “Senior Debt”), until all of the Senior Debt shall have been indefeasibly paid in full in cash and extinguished and all amounts due to the Senior Lenders have been repaid. Notwithstanding the foregoing, the Company may repay the Note(s) in full immediately prior to, and contingent on, an IPO of the Company on the Australian Stock Exchange, provided that if the Note(s) are prepaid and such IPO does not occur within one Business Day of such repayment, the Holder(s) shall return to the Company the proceeds of such repayment in full as if such prepayment had not occurred. Any existing and hereafter acquired liens and security interests of the Senior Lenders in any collateral securing all or any portion of the Senior Debt shall be senior, regardless of the time or method of perfection, to all existing and hereafter acquired liens and security interests, if any, of the Holder of the Note(s) (or any agent therefor) in the collateral, if any, securing all or any portion of the obligations hereunder. The subordination is for the benefit of, and shall be enforceable directly by, the Senior Lenders, and that each Senior Lender shall be deemed to have consented to the issuance of the Note(s) by the Company in reliance upon the covenants and provisions contained in the Note(s). Until the Senior Debt has been indefeasibly paid in full in cash and all amounts due to the Senior Lenders have been repaid, neither the Company nor any other Person on its behalf shall make any payment of any kind or character with respect to any obligations on the Note(s) or the Note Transaction Documents. In the event that any payment is received by a Holder in violation of the provisions hereof, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the Senior Lenders for application to the payment of Senior Debt. In addition, until the Senior Debt has been indefeasibly paid in full in cash and extinguished and all amounts due to the Senior Lenders have been repaid, the Holder(s) shall not take any collection action or enforcement action, or exercise any rights or remedies, with respect to the Note(s) or any Note Transaction Document. The Senior Lenders shall be deemed third party beneficiaries of this section with the power to enforce such provisions from time to time.

 

 
3
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY AND THE PARENT. The Company hereby represents and warrants to the Investor and agrees as follows:

 

3.1 Organization and Qualification. The Company is a corporation duly formed, validly existing, and in good standing under the laws of the State of Nevada, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. The Company is not in violation or in default of any of the provisions of its organizational or charter documents. The Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity, or enforceability of this Agreement or any other Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects, or condition (financial or otherwise) of the Company, taken as a whole , or (iii) a material adverse effect on the ability of the Company to perform in any material respect on a timely basis its obligations under this Agreement or any other Transaction Document, and no legal proceeding has been instituted; or, to its knowledge, threatened, in any such jurisdiction revoking, limiting, or curtailing or seeking to revoke, limit, or curtail such power and authority or qualification (a “Material Adverse Effect”).

 

3.2 Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement or the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and the other Transaction Documents to which it is party by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company. Upon delivery to the Investors, this Agreement and the other Transaction Documents to which the Company is a party will have been duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company or the Parent enforceable against the Company in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 

3.3 Capitalization. The authorized securities of the Company currently consist of 75,000,000 common shares (“Shares”); the number of Shares issued and outstanding has been disclosed to the Investor. All outstanding Shares have been duly authorized, validly issued, and are fully paid and non assessable. All outstanding Shares are owned by Manhattan Scientifics, Inc. Manhattan Scientifics represents and warrants to each Investor that Manhattan Scientifics, Inc. is the sole owner of Shares of the Company as of the date of closing.

 

 
4
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

3.3.1 Except as disclosed to the Investors, there are no outstanding options, rights, warrants, debentures, instruments, convertible securities or other agreements or commitments obligating the Company to issue any additional Shares.

 

3.3.2 Except as disclosed to the Investors, there are no (i) outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or by which the Company is or may become bound; (ii) financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company; (iii) agreements or arrangements under which the Company is obligated to register the sale of any of its securities under any law; (iv) there are no outstanding securities or instruments of the Company which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company.

 

3.4 No Conflicts. The execution and delivery of this Agreement and the other Transaction Documents to which the Company is party does not, and the performance by the Company of its obligations under this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby do not and will not, conflict with or result in a violation or breach of any term or provision of any contract, law, order, permit, statute, rule, or regulation applicable to the Company or any of its affiliates.

 

3.5 Issuance of the Notes. The Notes are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly issued, fully paid, and nonassessable.

 

3.6 Private Placement. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 4, no registration under the Securities Act is required for the offer and sale of the Notes by the Company to the Investors as contemplated hereby.

 

3.7 No General Solicitation. Neither the Company nor any person acting on behalf of the Company has offered or sold the Notes by any form of general solicitation or general advertising. The Company has offered the Notes for sale only to the Investors.

 

3.8 Consents. No consent or approval of any person, regulatory authority, governmental organization, or third party, and no approval, order, license, permit, franchise, declaration, or filing of any nature (with the exception of required Regulation D and “blue sky” filings with the appropriate federal and state securities agencies), is required as a result of or in connection with the execution, delivery, and performance of the obligations of the Company or the Parent under this Agreement or any other Transaction Document.

 

3.9 Real Property. Real property and facilities held under lease by the Company are held under valid and subsisting leases of which the Company is in compliance.

 

3.10 Litigation. Except as disclosed to the Investors, no actions (including, without limitation, derivative actions), suits, proceedings or investigations are pending or, to the knowledge of the Company, threatened against or affecting the Company at law or in equity in any court or before any other governmental authority that if adversely determined (a) would (alone or in the aggregate) reasonably be expected to have a Material Adverse Effect or (b) seeks to enjoin, either directly or indirectly, the execution, delivery or performance by the Company or the Parent of this Agreement or the Transaction Documents or the transactions contemplated hereby or thereby.

 

3.11 Patents and Trademarks; Assets. The Company owns, or possesses adequate rights or licenses to use, all trademarks, trade names, service marks, service mark registrations, service names, patents, patent applications, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights (“Intellectual Property Rights”) necessary to conduct the Company’s business as now conducted or as proposed to be conducted. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company, being threatened, against the Company regarding its Intellectual Property Rights. The Company has good and valid title to, or otherwise has the right to use pursuant to a valid and enforceable lease, license or similar contractual arrangement, all of the assets necessary to conduct the Company’s business as now conducted or as proposed to be conducted.

 

 
5
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

3.12 Financial Condition. As of the Closing Date, (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known and contingent liabilities) as they mature; (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business for the current fiscal year as now conducted and as proposed to be conducted, including its capital needs, projected capital requirements and capital availability thereof; (iii) the current cash flow of the Company would receive were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its debts when such amounts are required to be paid, and (iv) the Company has not incurred indebtedness beyond its ability to pay such debts as they become due. For the avoidance of doubt, any reference to the Company in this Section 3.12 shall be deemed to also include Parent.

 

4. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor hereby represents and warrants to the Company as follows:

 

4.1 Due Authorization. The Investor has all requisite capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby. This Agreement constitutes the legal, valid, and binding obligation of the Investor, enforceable against the Investor in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 

4.2 Own Account. The Investor understands that the Notes are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Note(s) as a principal for his own account and not with a view to or for distributing or reselling the Note(s) or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing the Note(s) in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of the Note(s) in violation of the Securities Act or any applicable state securities law.

 

4.3 Investor Status. At the time the Investor was offered the Note(s), he was, and as of the date hereof he is, an “accredited investor” as defined in Rule 501(a) under the Securities Act. The Investor is not required to be registered as a broker-dealer under Section 15 of the Securities Exchange Act of 1934, as amended.

 

4.4 Experience of the Investor. The Investor, either alone or together with his representatives, has such knowledge, sophistication, and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Note(s), and has so evaluated the merits and risks of such investment. The Investor is able to bear the economic risk of an investment in the Note(s) and, at the present time, is able to afford a complete loss of such investment.

 

 
6
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

4.5 General Solicitation. The Investor is not purchasing the Note(s) as a result of any advertisement, article, notice, or other communication regarding the Note(s) published in any newspaper, magazine, or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.

 

4.6 Access to Documents and Information. The Investor has (i) received and reviewed all information that it considers necessary or appropriate for deciding whether to purchase the Notes; (ii) had an opportunity, with his professional advisor, if any, to ask questions and receive answers from the Company regarding this Agreement and regarding the business, financial condition, and other aspects of the Company, and all such questions have been answered to the Investor’s full satisfaction; and (iii) had the opportunity to obtain all information (to the extent that the Company possesses or can acquire such information without unreasonable effort or expense) that the Investor deems necessary to evaluate the investment and to verify the accuracy of information otherwise provided to the Investor.

 

4.7 Reliance on Information. The Investor has not relied on any information or representations with respect to the Company or the Note(s), other than as expressly set forth herein and in the other Transaction Documents. The Investor understands that no person has been authorized to give any information or to make any representations other than those expressly contained herein and in the other Transaction Documents. To the extent the Investor has determined it necessary to protect his interest in connection with the investment in the Note(s), the Investor has relied on his own analysis and investigation and that of his advisors in determining whether to invest in the Note(s).

 

4.8 Tax Advice. The Investor represents that he has consulted with his tax, investment, and legal advisors with respect to the federal, state, local, and foreign tax consequences arising from the purchase and ownership of the Note(s).

 

4.9 Government Approval. The Investor is aware and understands that no federal or state agency has made any recommendation or endorsement of the Note(s) as an investment, nor has any such governmental agency reviewed or passed upon the adequacy of information disclosed to the Investor.

 

4.10 No Registration. The Investor understands that the Note(s) have not been, and other than expressly set forth in the Transaction Documents, the Investor has no rights to require that the Note(s) be registered or qualified under the Securities Act; that there is not now any public market for the Note(s) and none is anticipated; that the Note(s) will not be readily accepted as collateral for a loan; and that it may be extremely difficult to sell the Note(s) in the event of a financial emergency. As a consequence, the Investor understands that he must bear the economic risks of the investment in the Note(s) for an indefinite period of time.

 

5. ADDITIONAL INVESTOR RIGHTS (reserved)

 

6. GENERAL PROVISIONS

 

6.1 Amendment. No provision of this Agreement may be modified, supplemented, or amended except in a written instrument signed by each of the Investors and the Company.

 

6.2 Further Assurances. The Parties hereto will, upon reasonable request, execute, and deliver all such further assignments, endorsements, agreements, and documents, and take such other action as may be necessary in order to consummate or evidence the transactions contemplated hereby.

 

 
7
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

6.3 Notice. All notices, requests, payments, instructions or other documents to be given hereunder will be in writing and will be deemed to have been duly given if (i) delivered personally (effective upon delivery), (ii) mailed by certified mail, return receipt requested, postage prepaid (effective five business days after dispatch), (iii) sent by a reputable, established courier service that provides evidence of delivery and guarantees next business day delivery (effective the next business day), or (iv) sent by facsimile followed by confirmation, addressed as follows (or to such other address as the recipient party may have furnished to the sending party for the purpose pursuant to this Section 6.3):

 

(a) If to the Company:
Imagion Biosystems, Inc
800 Bradbury SE, Suite 213
Albuquerque, NM 87106
Attn.: President

(b) If to the Investor, to the address of the Investor as set forth on the Investor Signature Page.

 

6.4 Successors and Assigns. This Agreement shall be binding upon, enforceable against, and inure to the benefit of, the Parties hereto and their respective heirs, administrators, executors, personal representatives, successors, and assigns, and nothing herein is intended to confer any right, remedy, or benefit upon any other person. This Agreement may not be assigned by the Investors or the Company hereto except with the prior written consent of the other Party.

 

6.5 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada without regard to the principals of conflicts of law thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and Federal courts sitting in the State of Nevada for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court or that such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address in effect for notices to it under this agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.

 

6.6 Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be determined to be invalid, illegal, or unenforceable under present or future laws, then, and in that event: (1) the performance of the offending term or provision (but only to the extent its application is invalid, illegal, or unenforceable) shall be excused as if it had never been incorporated into this Agreement, and, in lieu of such excused provision, there shall be added a provision as similar in terms and amount to such excused provision as may be possible and be legal, valid, and enforceable; and (2) the remaining part of this Agreement (including the application of the offending term or provision to persons or circumstances other than those as to which it is held invalid, illegal, or unenforceable) shall not be affected thereby, and shall continue in full force and effect to the fullest extent provided by law.

 

 
8
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

6.7 Counterparts. This Agreement may be executed in counterparts and each counterpart shall have the same force and effect as an original and constitute an effective, binding agreement on the part of each of the undersigned. This Agreement may be transmitted by facsimile or otherwise.

 

6.8 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits, and schedules.

 

6.9 Construction. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. The words “include”, “includes”, and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, or other document herein shall be construed as referring to such agreement, instrument, or other document as from time to time amended, restated, supplemented, or otherwise modified (subject to any restrictions on such amendments, restatements, supplements, or modifications set forth herein), (ii) the words “herein”, “hereof”, and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof and (iii) all references herein to Sections, clauses, and Exhibits shall be construed to refer to Sections and clauses of, and Exhibits to, this Agreement.

 

6.10 Fees and Expenses. Each Party shall be responsible for its own expenses in connection with the execution of this Agreement.

 

[Signature Pages Follow]


 
9
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.

 

IMAGION BIOSYSTEMS, INC., a Nevada corporation

 

By:

Name:

Title:

 

MANHATTAN SCIENTIFICS, INC., a Delaware corporation

 

By:

Name:

Title:

 

 
10
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

EXHIBIT A

INVESTOR SIGNATURE PAGE

 

The undersigned Investor has read the Note Purchase Agreement dated as of ____________ and acknowledges that execution of this Investor Signature Page shall constitute the undersigned’s execution of such agreement.

 

I hereby subscribe for an aggregate of $________ in principal amount of the Note.

 

I am a resident of the State of _______________________________________________.

 

______________________________________________________________________

Please print above the exact name(s) in which the Note is to be held

 

My address is:              __________________________

__________________________

 

I acknowledge that the offering of the Note is subject to the Federal securities laws of the United States and state securities laws of those states in which the Note is offered, and that, pursuant to the United States Federal securities laws and state securities laws, the Notes may be purchased by persons who come within the definition of an “Accredited Investor” as that term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act (“Regulation D”).

 

By initialing one of the categories below, I represent and warrant that I come within the category so initialed and have truthfully set forth the factual basis or reason I come within that category. All information in response to this paragraph will be kept strictly confidential. I agree to furnish any additional information that the Company deems necessary in order to verify the answers set forth below.

 

NOTE: You must initial at least ONE category.

 

Individual Investor:

 

(An Investor who is an individual may initial either Category I, II, or III)

 

Category I

_____I am a director or executive officer of the Company.

 

Category II

_____I am an individual (not a partnership, corporation, etc.) whose individual net worth, or joint net worth with my spouse, excluding the value of my personal residence, presently exceeds $1,000,000.

 

Explanation. In calculation of net worth, you may include equity in personal property and real estate (excluding your principal residence), cash, short term investments, stocks, and securities. Equity in personal property and real estate should be based on the fair market value of such property less debt secured by such property.

 

Category III

_____I am an individual (not a partnership, corporation, etc.) who had an individual income in excess of $200,000 during the most recent two calendar years, or joint income with my spouse in excess of $300,000 during the most recent two calendar years, and I have a reasonable expectation of reaching the same income level in 2013.

 

 
11
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

Entity Investors:

 

(An Investor which is a corporation, limited liability company, partnership, trust, or other entity mayinitial either Category IV, V, VI or VII)

 

Category IV

The Investor is an entity in which all of the equity owners are “Accredited Investors” as defined in Rule 501(a) of Regulation D. If relying upon this category alone, each equity owner must complete a separate copy of this Agreement.

 

______________________________________________________________

(describe entity)

 

Category V

_____The Investor is a trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Note being offered, whose purchase is directed by a “Sophisticated Person” as described in Rule 506(b)(2)(ii) of Regulation D.

 

 

Category VI

_____The Investor is an organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the Note being offered, with total assets in excess of $5,000,000.

 

_____________________________________________________________

(describe entity)

 

Category VII

_____The Investor is a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.

 

______________________________________________________________

(describe entity)

Executed _______________, 2016 at ________________, ________________.

 

INDIVIDUAL

_____________________________

Signature (Individual)

_____________________________

(Print Name)

Residence Address:

_____________________________

Mailing Address:

____________________________

____________________________

Tax Identification No.: ___________

Telephone No.: ________________

Facsimile No.: _________________

E-Mail Address:

____________________________

 

 
12
 

 

Imagion Biosystems, Inc. NOTE PURCHASE AGREEMENT

 

EXHIBIT B

 

FORM OF PROMISSORY NOTE

 

 

 

 

 

 

13

 

EX-10.4 5 mhtx_ex104.htm FORM OF PROMISSORY NOTE mhtx_ex104.htm

EXHIBIT 10.4

 

Imagion Biosystems, Inc.

PROMISSORY NOTE

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT AND APPLICABLE LAWS OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS AND AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE. THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 2 AND SECTION 4 OF THIS NOTE.

 

THE SECURITIES REPRESENTED HEREBY ARE SUBORDINATED TO THE SENIOR DEBT (AS DEFINED HEREIN) IN ACCORDANCE WITH THE TERMS HEREOF.

 

$___________

Albuquerque, NM

________________

 

Imagion Biosystems, Inc., a Nevada corporation (the “Company”), for value received hereby, promises to pay to the individual or entity listed below, or registered assigns (the “Holder”), the sum of ____________dollars, or such other amount as shall then equal the outstanding principal amount disclosed on Exhibit B hereof, in accordance with the terms of this promissory note (the “Note”). Payment for all amounts due hereunder shall be made by wire transfer of immediately available funds, in lawful tender of the United States, to an account designated in writing by the Holder. This Note is being issued in connection with and pursuant to that certain Note Purchase Agreement (the “Agreement”) and is substantially similar to other notes issued pursuant to the Agreement.

 

The following is a statement of the rights of the Holder of this Note and the conditions to which this Note is subject, and to which the Holder hereof, by the acceptance of this Note, agrees:

 

1. Definitions. As used in this Note, the following terms, unless the context otherwise requires, have the following meanings:

 

(i) “Business Day” means any day except Saturday, Sunday, any day which shall be a federal legal holiday in the United States, or any day on which banking institutions in New York City are authorized or required by law or other governmental action to close.

 

(ii) “Holder” when the context refers to a holder of this Note, shall mean any person who shall at the time be the registered holder of this Note.

 

(iii) “Issuance Date” means the date of this Note.

 

2. Interest; Repayment of the Note.

 

2.1 This Note shall accrue simple interest, from the date hereof until such principal is paid, on any unpaid principal balance at the rate of eight percent (8.0%) per annum; provided that, commencing upon the occurrence of any Event of Default and so long as any Event of Default exists, interest on this Note shall accrue at the rate of ten percent (10%) per annum; provided further that the interest rate shall not exceed the maximum amount of interest permitted to be charged under applicable law.

 

 
1
 

 

Imagion Biosystems, Inc.

PROMISSORY NOTE

 

2.2 All principal amounts advanced hereunder and all interest accrued shall mature one year after the Issuance Date, at which time all principal and other amounts outstanding under this Note shall be due and payable. In addition, all amounts outstanding hereunder shall be due and payable on the date upon which the repayment of this Note is accelerated upon an Event of Default pursuant to Section 10. All payments hereunder shall be made in lawful money of the United States of America and will be credited first to interest, fees, costs and expenses then due and the remainder to the principal amount of this Note.

 

2.3 Subject to the provisions of Section 3, the Company shall have the right to prepay this Note at any time.

 

3. Pari Passu and Subordination. This Note is hereby deemed pari passu to any other note issued pursuant to the Agreement, the date of issuance of such note(s) notwithstanding. All obligations of the Company under this Note, the Note Purchase Agreement and any other agreement or other document executed in connection therewith (collectively, the “Note Transaction Documents”), including the Principal Amount, accrued interest and fees and expenses due to the Holder pursuant to this Note, shall be subordinate to all obligations of the Company under the Convertible Notes (together with any replacement notes issued therefor, the “Senior Notes”) issued by the Company’s predecessor, Senior Scientific, LLC, to Raymond A. Mason, William B. Jones, and Ferdinand J. Crovato Trust (together and including their successors and assigns, the “Senior Lenders”), the Convertible Note Purchase Agreement, dated as of April 3, 2013, as amended (the “Senior Agreement”), and the other Transaction Documents (as defined in the Senior Agreement), as amended, including all obligations of the Company under any promissory notes issued in amendment, restatement or replacement of the Senior Notes (together, the “Senior Debt”), until all of the Senior Debt shall have been indefeasibly paid in full in cash and extinguished and all amounts due to the Senior Lenders have been repaid. Notwithstanding the foregoing, the Company may repay this Note in full immediately prior to, and contingent on, an IPO of the Company on the Australian Stock Exchange, provided that if this Note is prepaid and such IPO does not occur within one Business Day of such repayment, the Holder shall return to the Company the proceeds of such repayment in full as if such prepayment had not occurred. Any existing and hereafter acquired liens and security interests of the Senior Lenders in any collateral securing all or any portion of the Senior Debt shall be senior, regardless of the time or method of perfection, to all existing and hereafter acquired liens and security interests, if any, of the Holder of this Note (or any agent therefor) in the collateral, if any, securing all or any portion of the obligations hereunder. The subordination is for the benefit of, and shall be enforceable directly by, the Senior Lenders, and that each Senior Lender shall be deemed to have consented to the issuance of this Note by the Company in reliance upon the covenants and provisions contained in this Note. Until the Senior Debt has been indefeasibly paid in full in cash and all amounts due to the Senior Lenders have been repaid, neither the Company nor any other Person on its behalf shall make any payment of any kind or character with respect to any obligations on this Note or the Note Transaction Documents. In the event that any payment is received by the Holder in violation of the provisions hereof, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the Senior Lenders for application to the payment of Senior Debt. In addition, until the Senior Debt has been indefeasibly paid in full in cash and extinguished and all amounts due to the Senior Lenders have been repaid, the Holder shall not take any collection action or enforcement action, or exercise any rights or remedies, with respect to this Note or any Note Transaction Document. The Senior Lenders shall be deemed third party beneficiaries of this Section 3 with the power to enforce such provisions from time to time.

 

4. Events of Default. Each of the following events shall constitute a default under this Note (each an “Event of Default”):

 

 
2
 

 

Imagion Biosystems, Inc.

PROMISSORY NOTE

 

(a) failure by the Company to pay the principal amount of this Note on the date the same becomes due and payable under this Note or the Agreement or any interest or other amounts due under this Note within five (5) days of the date the same becomes due and payable under this Note or the Agreement;

 

(b) (reserved);

 

(c) the Company shall: (1) make a general assignment for the benefit of its creditors; (2) apply for or consent to the appointment of a receiver, trustee, assignee, custodian, sequestrator, liquidator or similar official for itself or any of its assets and properties; (3) commence a voluntary action for relief as a debtor under the United States Bankruptcy Code; (4) file with or otherwise submit to any governmental authority any petition, answer or other document seeking: (A) reorganization, (B) an arrangement with creditors or (C) to take advantage of any other present or future applicable law respecting bankruptcy, reorganization, insolvency, readjustment of debts, relief of debtors, dissolution or liquidation; (5) file or otherwise submit any answer or other document admitting or failing to contest the material allegations of a petition or other document filed or otherwise submitted against it in any proceeding under any such applicable law; (6) be adjudicated a bankrupt or insolvent by a court of competent jurisdiction; (7) be unable, or admit in writing its inability, to pay its debts as they mature; or (8) take any action for the purpose of effecting any of the foregoing;

 

(d) any case, proceeding or other action shall be commenced against the Company for the purpose of effecting, or an order, judgment or decree shall be entered by any court of competent jurisdiction approving (in whole or in part) anything specified in Section 7(c) hereof, or any receiver, trustee, assignee, custodian, sequestrator, liquidator or other official shall be appointed with respect to the Company, or shall be appointed to take or shall otherwise acquire possession or control of all or a substantial part of the assets and properties of the Company, and any of the foregoing shall continue unstayed and in effect for any period of at least sixty (60) days from the date of commencement;

 

(e) default shall occur with respect to any indebtedness for borrowed money of the Company or under any formal debt agreement under which such indebtedness may be issued by the Company, and such default shall continue for more than the period of grace, if any, therein specified, if the aggregate amount of such indebtedness for which such default shall have occurred exceeds $50,000;

 

(f) default shall occur with respect to any contractual obligation of the Company under or pursuant to any contract or lease to which the Company is a party and such default shall continue for more than the period of grace, if any, therein specified, if the aggregate amount of the contractual liability arising out of such default exceeds or is reasonably estimated to exceed $50,000;

 

 
3
 

 

Imagion Biosystems, Inc.

PROMISSORY NOTE

 

(g) default by the Company shall occur under any agreement, note, mortgage, security agreement or other instrument evidencing or securing indebtedness that ranks senior in priority to, or pari passu with, the obligations under this Note, the Agreement or any other Transaction Document, and such default shall continue for more than the period of grace, if any, therein specified, if the aggregate amount of such indebtedness for which such default shall have occurred exceeds $50,000; or

 

(h) any material breach by the Company of any covenant, warranty, representation or other term or condition of this Note, the Agreement or any other Note Transaction Document at any time which is not cured within the time periods permitted therein or, if no cure period is provided therein, within thirty (30) calendar days after the occurrence thereof;

 

(i) the Company shall liquidate, dissolve or have its existence terminated.

 

5. Remedies. If any Event of Default occurs under Section 4(c) or 4(d) hereof, then the full principal amount of this Note, together with any other amounts outstanding under this Note or any other Note Transaction Document, shall become immediately due and payable in cash without any action on the part of the Holder, and if any other Event of Default occurs, the full principal amount of this Note, together with any other amounts outstanding under this Note or any other Note Transaction Document, to the date of acceleration shall become, at the Holder’s election, immediately due and payable in cash. All Notes for which the full amount hereunder shall have been paid in accordance herewith shall promptly be surrendered to or as directed by the Company. The Holder need not provide and the Company hereby waives any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such declaration may be rescinded and annulled by the Holder at any time prior to payment hereunder and the Holder shall have all rights as a Note holder until such time, if any, as the full payment under this Section 5 shall have been received by it. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon. In addition to the foregoing remedies, upon the occurrence of any Event of Default, the Holder may exercise any other right, power or remedy granted to it by the Note Transaction Documents or otherwise permitted to it by law, either by suit in equity or by action at law, or both.

 

6. Assignment. Subject to securities laws, the rights and obligations of the Company and the Holder of this Note shall be binding upon and benefit the successors and assigns of the parties; provided that the Company shall not assign its rights or obligations under this Note without the prior written consent of the Holder.

 

 
4
 

 

Imagion Biosystems, Inc.

PROMISSORY NOTE

 

7. Waiver and Amendment. Any provision of this Note may be amended, waived, or modified upon the written consent of the Company and Holder.

 

8. Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if faxed with confirmation of receipt by the sending device or if delivered by internationally recognized overnight courier such as FedEx or DHL, at the respective addresses of the parties as set forth herein. Any party hereto may by notice so given change its address for future notice hereunder. Notice shall conclusively be deemed to have been given when delivered or faxed in the manner set forth above and shall be deemed to have been received when delivered.

 

9. No Stockholder Rights. Nothing contained in this Note shall be construed as conferring upon the Holder or any other person the right to vote or to consent or to receive notice as a stockholder in respect of meetings of stockholders for the election of directors of the Company or any other matters or any rights whatsoever as a stockholder of the Company.

 

10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, excluding that body of law relating to conflict of laws.

 

11. Waiver. The Company hereby waives demand, notice, presentment, protest, and notice of dishonor.

 

[SIGNATURE PAGE FOLLOWS]

 

 
5
 

 

Imagion Biosystems, Inc.

PROMISSORY NOTE

 

IN WITNESS WHEREOF, the Company has caused this Note to be issued this _____________ 2016.

 

 Imagion Biosystems, Inc.

a Nevada corporation

    
By:

 

Name:

 
 Title: 
    

 

Name of Holder: ___________________

 

Address:

 

 

6

 

EX-10.5 6 mhtx_ex105.htm IRREVOCABLE PROXY mhtx_ex105.htm

EXHIBIT 10.5

 

Imagion Biosystems Inc., Irrevocable Proxy

 

1.Manhattan Scientifics, Inc., (“MSI”) the sole shareholder of Common Stock of Imagion Biosystems, Inc., a Nevada corporation (the “Company”), hereby grants to the Investors (the “Investors”) under the Note Purchase Agreement of even date herewith (the “NPA”), an irrevocable proxy as set forth below. This proxy is a condition of and an inducement to the Investors providing capital to the Company under the NPA.

 

 

2.The Acquirer grants to the Investors this as the Acquirer’s proxy to vote all shares of the Company held by MSI (the “Shares”) as the Investors deems appropriate in the best interest of the Corporation on all matters reasonably required to carry out the spinout plan described in the term sheet attached as an exhibit hereto.

 

 

3.This Irrevocable Proxy will terminate on the first to occur of: (a) the closing of the first sale of the Company’s Common Stock in a firm commitment, underwritten public offering on the Australian Stock Exchange, or (b) three years after the date hereof.

 

 

4.Those issues on which this Irrevocable Proxy shall be authorized to vote shall include any corporate event and all matters for which shareholders may vote.

 

 

5.The Company may accept a communication from any Investor concerning voting pursuant to this Irrevocable Proxy as representing a communication of all the Investors, and any Investor making such communication represents and warrants to the Company that such Investor has the right and authority to make such communication on behalf of all the Investors

 

Dated: 10 Nov. 2016

 

 IMAGION BIOSYSTEMS, INC., a Nevada corporation
    
By:

/s/ Robert Proulx

 

Name:

Robert Proulx

 
 Title:

Director

 
    

 

MANHATTAN SCIENTIFICS, INC., a Delaware corporation

 

 

 

 

 

 

By:

/s/ Manny Tsoupanarias

 

 

Name:

Manny Tsoupanarias

 

 

Title:

CEO