EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of December 19, 2002 (the
"Agreement"), is made by and between MIRAVANT MEDICAL TECHNOLOGIES, a Delaware
corporation, 000 Xxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Company"),
and PRINCESS FINANCE LIMITED, a BVI company (the "Purchaser").
W I T N E S S E T H :
WHEREAS, in connection with the Convertible Debt and Warrant Purchase
Agreement dated December 19, 2002 among the Purchaser and the Company (the
"Purchase Agreement"), the Company has agreed, upon the terms and subject to the
conditions of said Purchase Agreement, to issue and sell to the Purchaser up to
TWELVE MILLION DOLLARS ($12,000,000) of the Company's currently unsecured
Convertible Promissory Notes (the "Notes"), together with the Note Warrants and
Loan Origination Warrant and the shares of Common Stock issuable upon conversion
of the Notes, or payment of interest on the Notes in common stock, and the
shares of Common Stock into which the Warrants are exercisable are all
collectively referred to herein as the "Registrable Shares." In connection with
the sale of the Registrable Shares to the Purchaser (the "Offering"), the
Purchaser will be entitled to registration rights as set forth in this
Agreement.
WHEREAS, to induce the Purchaser to execute and deliver the Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "Securities
Act"), and applicable state securities laws with respect to the Registrable
Shares;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Purchase Agreement.
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Holders" are stockholders of the Company who, by virtue
of agreements with the Company, are entitled to include their
securities in certain Registration Statements filed by the Company.
(b) "Purchaser" means the Purchaser and any transferee or
assignee of the Purchaser who agree to become bound by the provisions
of this Agreement in accordance with Section 9 hereof.
(c) "Registrable Securities" means the Registrable Shares,
together with any shares of Common Stock or other securities which may
be issued as a dividend or other distribution or in exchange for
Registrable Shares and any additional shares of Common Stock, which may
be issued to Purchaser in accordance with Section 4.5 of the Purchase
Agreement.
(d) "Registration Period" means the period between the date of
this Agreement and the earlier of (i) the date on which all of the
Registrable Securities (including all shares of Common Stock into which
the Warrants are exercisable) have been sold in transactions where the
transferee is not subject to securities law resale restrictions (or is
subject to securities law resale restrictions solely because it is an
"affiliate" of the Company under the Securities Act and the Rules
promulgated thereunder), (ii) the date on which the Registrable
Securities (in the opinion of Purchaser's or the Company's counsel) may
be immediately sold without registration and free of restrictions on
transfer, or (iii) one hundred twenty (120) days following the
effectiveness of a Registration Statement filed pursuant to Section 2
below.
(e) "Registration Statement" means a registration statement of
the Company filed with the Securities and Exchange Commission (the
"SEC") under the Securities Act.
(f) The terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a Registration
Statement in compliance with the Securities Act and applicable rules
and regulations thereunder and pursuant to Rule 415 under the
Securities Act, and the declaration or ordering of effectiveness of
such Registration Statement by the SEC.
2. Registration.
(a) Mandatory Registration. Pursuant to the terms of this
Section 2(a), the Company will prepare and file a Registration
Statement with the SEC, registering all of the Registrable Securities
for resale promptly within ninety (90) days of written demand of the
Purchaser. To the extent allowable under the Securities Act and the
Rules promulgated thereunder, the Registration Statement shall include
the Registrable Securities of the Purchase Agreement (i) to prevent
dilution resulting from stock splits, stock dividends or similar
transactions, or (ii) by reason of changes in the exercise price of the
Warrants or the Conversion Price of the Notes in accordance with the
terms thereof. The number of shares of Common Stock initially included
in such Registration Statement shall include One Hundred Percent (100%)
of the number of Registrable Securities that are issued on the Closing
Date and issuable upon exercise of the Warrants as of the Closing Date.
The Registration Statement (and each amendment or supplement thereto)
shall be provided to, and subject to the reasonable approval of, the
Purchaser and its counsel. The Company shall use its best efforts to
cause such Registration Statement to be declared effective by the SEC
as soon as practicable after the Company meets all requirements to file
a Form S-3 and as soon as practicable after filing and in any event no
later than sixty (60) days after the Company meets all requirements to
file a Form S-3. Additionally, if the SEC reviews the Registration
Statement and requires the Company to make modifications thereto, then
it will use its best efforts to have the Registration Statement
declared effective as soon as practicable. In the event that after the
Closing Date and before the Registration Statement is filed, the
offices of the SEC are closed due to acts of God, war or terror, then
the filing deadline will be extended by a number of days equal to the
days of any such closure. Such best efforts shall include, but not be
limited to, promptly responding to all comments received from the staff
of the SEC. Should the Company receive notification from the SEC that
the Registration Statement will receive no action or no review from the
SEC, the Company shall cause such Registration Statement to become
effective within five (5) business days of such SEC notification. Once
declared effective by the SEC, the Company shall cause such
Registration Statement to remain effective throughout the Registration
Period.
(b) Eligibility for Registration. As of the date hereof, the
Company represents and warrants that it currently does not meet the
requirements for the use of Form S-3 for registration of the sale by
the Purchaser of the Registrable Securities and the Company shall file
all reports required to be filed by the Company with the SEC in a
timely manner so as to maintain such eligibility for the use of Form
S-3. The Company currently does not meet the SEC requirement provided
in the Form S-3 instructions which requires securities of the same
class as the Common Shares be listed on a national securities exchange
or quoted on Nasdaq. The Company represents that it will file a Form
S-1 or Form S-2, at the Company's discretion, if it cannot become
eligible to file a Form S-3.
(c) Piggyback Registration Rights. If the Company at any time
proposes to file a registration statement with respect to any class of
equity securities, whether for its own account (other than the Current
Registration Statements or in connection with any registration
statement contemplated a registration statement on Form S-4 or S-8 (or
any successor or substantially similar form), or a registration
statement filed in connection with an exchange offer or offering or
securities solely to the Company's existing Purchaser), or for the
account of a holder of securities of the Company (a "Requesting
Purchaser"), then the Company shall in each case give written notice of
such proposed filing to the Purchaser at least fifteen (15) Business
Days before the anticipated filing date of any such registration
statement by the Company, and such notice shall offer to the Purchaser
the opportunity to have any or all of the Registrable Securities held
by the Purchaser included in such registration statement. If the
Purchaser desires to have its Registrable Securities registered under
this Section 2, the Purchaser shall so advise the Company in writing
within fifteen (15) days after the date of receipt of such notice
(which request shall set forth the amount of Registrable Securities for
which registration is requested), and the Company shall include in such
Registration Statement all such Registrable Securities so requested to
be included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of any such proposed public offering
advises the Company in writing that the total amount or kind of
securities which the Purchaser, the Company and any other persons or
entities intended to be included in such proposed public offering is
sufficiently large to materially adversely affect the success of such
proposed public offering, then (A) the amount or kind of securities to
be offered for the accounts of the Company and holders of securities of
the Company (except for the Purchaser), to the extent that the Company
did not initiate such registration for its own account or such holders
of securities are not Requesting Purchasers, shall first be reduced pro
rata, and (B) if the amount of securities to be offered for such
accounts is reduced to zero, to the extent further reduction is
necessary, the amount or kind of securities to be offered for the
account of the Purchaser shall next be reduced to the extent necessary
to reduce the total amount or kind of securities to be included in such
proposed public offering to the amount or kind recommended by such
managing underwriter or underwriters before the securities offered by
the Company, to the extent the Company has initiated the registration
for its own account, or any Requesting Purchaser, are so reduced. If
the securities proposed to be included by the Purchaser are reduced,
then number of registration requests permitted to the Purchaser shall
be increased by one for each such reduction. Notwithstanding the
foregoing, the Company may withdraw any registration statement that is
subject to this Section 2 at any time prior to the time it became
effective.
3. Additional Obligations of the Company. In connection with the
registration of the Registrable Securities, the Company shall have the following
additional obligations:
(a) The Company shall keep the Registration Statement required
by Section 2(a) hereof effective pursuant to Rule 415 under the
Securities Act at all times during the Registration Period as defined
in Section 1(d) above.
(b) The Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) filed by the
Company shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein, or
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading. The Company shall prepare and
file with the SEC such amendments (including post-effective amendments)
and supplements to the Registration Statement and the prospectus used
in connection with the Registration Statement as may be necessary to
keep the Registration Statement effective at all times during the
Registration Period, and, during such period, shall comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration
Statement until such time as all of such Registrable Securities have
been disposed of in accordance with the intended methods of disposition
by the sellers thereof as set forth in the Registration Statement. In
the event the number of shares of Common Stock included in a
Registration Statement filed pursuant to this Agreement is insufficient
to cover all of the Registrable Securities, the Company shall amend, if
permissible, the Registration Statement and/or file a new Registration
Statement so as to cover all of the Registrable Securities as soon as
practicable, but in no event more than twenty (20) business days after
the Company first determines (or reasonably should have determined) the
need therefor. The Company shall use its best efforts to cause such
amendment and/or new Registration Statement to become effective as soon
as practicable following the filing thereof.
(c) The Company shall furnish to each Purchaser whose
Registrable Securities are included in the Registration Statement (i)
promptly after the same is prepared and publicly distributed, filed
with the SEC or received by the Company, one copy of the Registration
Statement and any amendment thereto; each preliminary prospectus and
final prospectus and each amendment or supplement thereto; and, in the
case of the Registration Statement required under Section 2(a) above,
each letter written by or on behalf of the Company to the SEC and each
item of correspondence from the SEC, in each case relating to such
Registration Statement (other than any portion of any item thereof
which contains information for which the Company has sought
confidential treatment); and (ii) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto, and such other documents as such Purchaser may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Purchaser.
(d) The Company shall use its best efforts to (i) register and
qualify the Registrable Securities covered by the Registration
Statement under such other securities or blue sky laws of such
jurisdictions as the Purchaser reasonably request, (ii) prepare and
file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations as may be necessary
to maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale
in such jurisdictions. Notwithstanding the foregoing provision, the
Company shall not be required in connection therewith or as a condition
thereto to (i) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d),
(ii) subject itself to general taxation in any such jurisdiction, (iii)
file a general consent to service of process in any such jurisdiction,
(iv) provide any undertakings that cause more than nominal expense or
burden to the Company, or (v) make any change in its charter or bylaws,
which in each case the Board of Directors of the Company determines to
be contrary to the best interests of the Company and its stockholders.
(e) In the event the Purchaser holds a majority in interest of
the Registrable Securities being offered in an underwriter offering,
the Company shall enter into and perform its obligations under an
underwriting agreement in usual and customary form including, without
limitation, customary indemnification and contribution obligations,
with the managing underwriter of such offering. The Company shall be
responsible for payment of the fees of such underwriters and the
attorney fees and costs incurred by one law firm selected by the
Purchaser to represent its interests in the underwritten offering. No
Purchaser shall be obligated to participate in any such underwriting.
(f) The Company shall notify each Purchaser who holds
Registrable Securities being sold pursuant to a Registration Statement
of the happening of any event of which the Company has knowledge as a
result of which the prospectus included in the Registration Statement
as then in effect includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (a "Suspension Event"). The
Company shall make such notification as promptly as practicable after
the Company becomes aware of such Suspension Event, shall promptly, but
in all events within five (5) business days, use its best efforts to
prepare a supplement or amendment to the Registration Statement to
correct such untrue statement or omission, and shall deliver a number
of copies of such supplement or amendment to each Purchaser as such
Purchaser may reasonably request. Notwithstanding the foregoing
provision, the Company shall not be required to maintain the
effectiveness of the Registration Statement or to amend or supplement
the Registration Statement for a period (a "Delay Period") expiring
upon the earlier to occur of (i) the date on which such material
information is disclosed to the public or ceases to be material, (ii)
the date on which the Company is able to comply with its disclosure
obligations and SEC requirements related thereto, or (iii) thirty (30)
days after the occurrence of the Suspension Event; provided, however,
that there shall not be more than two Delay Periods in any twelve (12)
month period.
(g) The Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement and, if such an order is issued, shall use its
best efforts to obtain the withdrawal of such order at the earliest
possible time and to notify each Purchaser who holds Registrable
Securities being sold (or, in the event of an underwritten offering,
the managing underwriters) of the issuance of such order and the
resolution thereof.
(h) The Company shall permit a single firm of counsel
designated by the Purchaser who holds a majority in interest of the
Registrable Securities being sold pursuant to such registration to
review the Registration Statement and all amendments and supplements
thereto (as well as all requests for acceleration or effectiveness
thereof) a reasonable period of time prior to their filing with the
SEC, and shall not file any document in a form to which such counsel
reasonably objects.
(i) At the request of any Purchaser who holds Registrable
Securities being sold pursuant to such registration, the Company shall
furnish on the date that Registrable Securities are delivered to an
underwriter for sale in connection with the Registration Statement (i)
a letter, dated such date, from the Company's independent certified
public accountants in form and substance as is customarily given by
independent certified public accountants to underwriters in an
underwritten public offering, addressed to the Purchaser; and (ii) an
opinion, dated such date, from counsel representing the Company for
purposes of such Registration Statement, in form and substance as is
customarily given in an underwritten public offering, addressed to the
underwriters and Purchaser.
(j) The Company shall make available for inspection by any
Purchaser whose Registrable Securities are being sold pursuant to such
registration, any underwriter participating in any disposition pursuant
to the Registration Statement, and any attorney, accountant or other
agent retained by any such Purchaser or underwriter (collectively, the
"Inspectors"), all pertinent financial and other records, pertinent
corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable each Inspector
to exercise its due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information which any
Inspector may reasonably request for purposes of such due diligence;
provided, however, that each Inspector shall hold in confidence and
shall not make any disclosure (except to a Purchaser) of any Record or
other information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration
Statement, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court or government body of competent
jurisdiction, or such release is reasonably necessary in connection
with litigation or other legal process or (iii) the information in such
Records has been made generally available to the public other than by
disclosure in violation of this or any other agreement. The Company
shall not be required to disclose any confidential information in such
Records to any Inspector until and unless such Inspector shall have
entered into confidentiality agreements (in form and substance
satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3(j). The Purchaser agrees
that it shall, upon learning that disclosure of such Records is sought
in or by a court or governmental body of competent jurisdiction or
through other means, give prompt notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the Records
deemed confidential. Nothing herein shall be deemed to limit the
Purchaser's ability to sell Registrable Securities in a manner which is
otherwise consistent with applicable laws and regulations.
(k) The Company shall hold in confidence and shall not make
any disclosure of information concerning the Purchaser provided to the
Company pursuant hereto unless (i) disclosure of such information is
necessary to comply with federal or state securities laws, (ii) the
disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other
order from a court or governmental body of competent jurisdiction, or
such release is reasonably necessary in connection with litigation or
other legal process or (iv) such information has been made generally
available to the public other than by disclosure in violation of this
or any other agreement. The Company agrees that it shall, upon learning
that disclosure of such information concerning the Purchaser is sought
in or by a court or governmental body of competent jurisdiction or
through other means, give prompt notice to the Purchaser and allow the
Purchaser, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
(l) The Company shall provide a transfer agent and registrar,
which may be a single entity, for the Registrable Securities not later
than the effective date of the Registration Statement.
(m) The Company shall cooperate with the Purchaser who holds
Registrable Securities being sold and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery
of certificates (not bearing any restrictive legends) representing
Registrable Securities to be sold pursuant to the Registration
Statement and enable such certificates to be in such denominations or
amounts as the case may be, and registered in such names as the
managing underwriter or underwriters, if any, or the Purchaser may
reasonably request; and, within three (3) business days after a
Registration Statement which includes Registrable Securities is ordered
effective by the SEC, the Company shall deliver, and shall cause legal
counsel selected by the Company to deliver, to the transfer agent for
the Registrable Securities (with copies to the Purchaser whose
Registrable Securities are included in such Registration Statement)
instructions to the transfer agent to issue new stock certificates
without a legend and an opinion of such counsel that the Registrable
Shares have been registered.
(n) The Company shall take all other reasonable actions
necessary to expedite and facilitate disposition by the Purchaser of
the Registrable Securities pursuant to the Registration Statement.
(o) At the request of any Purchaser, the Company shall
promptly prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement
and the prospectus used in connection with the Registration Statement
as may be necessary in order to change the plan of distribution set
forth in such Registration Statement to conform to written information
supplied to the Company by such Purchaser for such purpose.
(p) The Company shall comply with all applicable laws related
to a Registration Statement and offering and sale of securities and all
applicable rules and regulations of governmental authorities in
connection therewith.
4. Obligations of the Purchaser. In connection with the registration of
the Registrable Securities, the Purchaser shall have the following obligations:
(a) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Agreement with respect
to the Purchaser that the Purchaser shall furnish to the Company such
information regarding itself, the number of Registrable Securities held
by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required by rules of the
SEC to effect the registration of the Registrable Securities. The
information so provided by the Purchaser shall be included without
material alteration in the Registration Statement and shall not be
modified without such Purchaser's written consent. At least ten (10)
business days prior to the first anticipated filing date of the
Registration Statement, the Company shall notify the Purchaser of the
information the Company requires from each such Purchaser (the
"Requested Information") if such Purchaser elects to have any of such
Purchaser's Registrable Securities included in the Registration
Statement. If within five (5) business days of such notice the Company
has not received the Requested Information from an Purchaser (a
"Non-Responsive Purchaser"), then the Company may file the Registration
Statement without including Registrable Securities of such
Non-Responsive Purchaser.
(b) The Purchaser, by the Purchaser's acceptance of the
Registrable Securities, agrees to cooperate with the Company as
reasonably requested by the Company in connection with the preparation
and filing of the Registration Statement hereunder, unless such
Purchaser has notified the Company in writing of such Purchaser's
election to exclude all of such Purchaser's Registrable Securities from
the Registration Statement.
(c) In the event the Purchaser holds a majority in interest of
the Registrable Securities being registered determine to engage the
services of an underwriter, the Purchaser agrees to enter into and
perform such Purchaser's obligations under an underwriting agreement,
in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing
underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of the Registrable Securities, unless such Purchaser has notified the
Company in writing of such Purchaser's election to exclude all of such
Purchaser's Registrable Securities from the applicable Registration
Statement. No Purchaser shall be obligated to participate in any such
underwriting.
(d) The Purchaser agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in
Section 3(f) or 3(g), such Purchaser will immediately discontinue
disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Purchaser's
receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3(f) or 3(g) and, if so directed by the
Company, such Purchaser shall deliver to the Company (at the expense of
the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies, other than file copies, in such Purchaser's
possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
(e) No Purchaser may participate in any underwritten
registration hereunder unless such Purchaser (i) agrees to sell such
Purchaser's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Purchaser entitled hereunder
to approve such arrangements, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of
such underwriting arrangements, and (iii) agrees to pay its pro rata
share of all underwriting discounts and commissions and other fees and
expenses of investment bankers and any manager or managers of such
underwriting and legal expenses of the underwriter applicable with
respect to its Registrable Securities, in each case to the extent not
payable by the Company pursuant to the terms of this Agreement.
5. Expenses of Registration. All expenses, other than underwriting
discounts and commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers and accounting fees, the
fees and disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel selected by the Purchaser pursuant to Section 3(e)
hereof, shall be borne by the Company.
6. Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Purchaser who holds such Registrable Securities,
the directors, if any, of such Purchaser, the officers, if any, of such
Purchaser, each person, if any, who controls any Purchaser within the
meaning of the Securities Act or the Exchange Act, any underwriter (as
defined in the Securities Act) for the Purchaser, the directors, if
any, of such underwriter and the officers, if any, of such underwriter,
and each person, if any, who controls any such underwriter within the
meaning of the Securities Act or the Exchange Act (each, an
"Indemnified Person"), against any losses, claims, damages, expenses or
liabilities (joint or several) (collectively "Claims") to which any of
them become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations in the
Registration Statement, or any post-effective amendment thereof, or any
prospectus included therein: (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
any post-effective amendment thereof or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) any
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus if used prior to the effective
date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission
or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under
which the statements therein were made, not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act,
the Exchange Act or any state securities law or any rule or regulation
(the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in
Section 6(c) with respect to the number of legal counsel, the Company
shall reimburse the Purchaser and each such underwriter or controlling
person, promptly as such expenses are incurred and are due and payable,
for any legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (A) shall not
apply to a Claim arising out of or based upon a Violation which occurs
in reliance upon and in conformity with information furnished in
writing to the Company by any Indemnified Person or underwriter for
such Indemnified Person expressly for use in connection with the
preparation of the Registration Statement or any such amendment thereof
or supplement thereto, if such prospectus was timely made available by
the Company pursuant to Section 3(c) hereof; (B) with respect to any
preliminary prospectus shall not inure to the benefit of any such
person from whom the person asserting any such Claim purchased the
Registrable Securities that are the subject thereof (or to the benefit
of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was
corrected in the prospectus, as then amended or supplemented, if a
prospectus was timely made available by the Company pursuant to Section
3(c) hereof; and (C) shall not apply to amounts paid in settlement of
any Claim if such settlement is effected without the prior written
consent of the Company, which consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified
Persons and shall survive the transfer of the Registrable Securities by
the Purchaser pursuant to Section 9.
(b) In connection with any Registration Statement in which an
Purchaser is participating, each such Purchaser, severally and not
jointly, agrees to indemnify and hold harmless, to the same extent and
in the same manner set forth in Section 6(a), the Company, each of its
directors, each of its officers who signs the Registration Statement,
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, any underwriter and any other
stockholder selling securities pursuant to the Registration Statement
or any of its directors or officers or any person who controls such
stockholder or underwriter within the meaning of the Securities Act or
the Exchange Act (collectively and together with an Indemnified Person,
an "Indemnified Party"), against any Claim to which any of them may
become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Purchaser expressly for
use in connection with such Registration Statement, and such Purchaser
will promptly reimburse any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this
Section 6(b) shall not apply to amounts paid in settlement of any Claim
if such settlement is effected without the prior written consent of
such Purchaser, which consent shall not be unreasonably withheld;
provided further, however, that the Purchaser shall be liable under
this Section 6(b) for only that amount of a Claim as does not exceed
the net proceeds to such Purchaser as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities by the Purchaser
pursuant to Section 9. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this
Section 6(b) with respect to any preliminary prospectus shall not inure
to the benefit of any Indemnified Party if the untrue statement or
omission of material fact contained in the preliminary prospectus was
corrected on a timely basis in the prospectus, as then amended or
supplemented.
(c) Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of
any action (including any governmental action), such Indemnified Person
or Indemnified Party shall, if a Claim in respect thereof is to made
against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof and
this indemnifying party shall have the right to participate in, and, to
the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense
thereof with counsel mutually satisfactory to the indemnifying parties;
provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel, with the fees and
expenses to be paid by the indemnifying party, if, in the reasonable
opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified
Party and the indemnifying party would be inappropriate due to actual
or potential differing interests between such Indemnified Person or
Indemnified Party and other party represented by such counsel in such
proceeding. The Company shall pay for only one separate legal counsel
for the Purchaser; such legal counsel shall be selected by the
Purchaser holding a majority in interest of the Registrable Securities.
The failure to deliver written notice to the indemnifying party within
a reasonable time of the commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified
Person or Indemnified Party under this Section 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend such
action. The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is
incurred and is due and payable. The provisions of this Section 6 shall
survive the termination of this Agreement.
7. Contribution. If the indemnification provided for in Section 6
herein is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities as between the Company on the one hand and any Purchaser on the
other, in such proportion as is appropriate to reflect the relative fault of the
Company and of such Purchaser in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and of any Purchaser on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by such Purchaser.
In no event shall the obligation of any Indemnifying Party to
contribute under this Section 7 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 6(a) or 6(b) hereof had been
available under the circumstances.
The Company and the Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Purchaser or the underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraphs shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this section, no Purchaser or underwriter
shall be required to contribute any amount in excess of the amount by which (i)
in the case of any Purchaser, the net proceeds received by such Purchaser from
the sale of Registrable Securities or (ii) in the case of an underwriter, the
total price at which the Registrable Securities purchased by it and distributed
to the public were offered to the public exceeds, in any such case, the amount
of any damages that such Purchaser or underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act ) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
8. Public Information. With a view to making available to the Purchaser
the benefits of Rule 144 promulgated under the Securities Act or any other
similar rule or regulation of the SEC that may at any time permit the Purchaser
to sell securities of the Company to the public without registration ("Rule
144"), the Company agrees to:
(a) File with the SEC in a timely manner and make and keep
available all reports and other documents required of the Company under
the Exchange Act so long as the Company remains subject to such
requirements and the filing and availability of such reports and other
documents is required for the applicable provisions of Rule 144; and
(b) Furnish to the Purchaser so long as such Purchaser holds
Registrable Securities, promptly upon request, (i) a written statement
by the Company that it has complied with the reporting requirements of
Rule 144 and the Exchange Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so
filed by the Company, and (iii) such other information as may be
reasonably requested to permit the Purchaser to sell such securities
pursuant to Rule 144 without registration.
9. Assignment of Registration Rights. The rights to have the Company
register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Purchaser to transferees or assignees of all or
any portion of such securities or Warrants exercisable into Registrable
Securities only if (i) the Purchaser agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (ii) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being transferred
or assigned, (iii) following such transfer or assignment the further disposition
of such securities by the transferee or assignee is restricted under the
Securities Act and applicable state securities laws, (iv) at or before the time
the Company received the written notice contemplated by clause (ii) of this
sentence, the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein, (v) such transfer shall have
been made in accordance with the applicable requirements of the Purchase
Agreement, and (vi) such transferee shall be an "accredited investor" as that
term is defined in Rule 501 of Regulation D promulgated under the Securities
Act.
10. Amendment of Registration Rights. Provisions of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Purchaser. Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon the Purchaser
and the Company.
11. Miscellaneous.
(a) Conflicting Instructions. A person or entity is deemed to
be a holder of Registrable Securities whenever such person or entity
owns of record such Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two or more persons
or entities with respect to the same Registrable Securities, the
Company shall act upon the basis of instructions, notice or election
received from the registered owner of such Registrable Securities.
(b) Notices. Any notices required or permitted to be given
under the terms of this Agreement shall be sent by certified or
registered mail (with return receipt requested) or delivered personally
or by courier (including a nationally recognized overnight delivery
service) or by facsimile transmission. Any notice so given shall be
deemed effective upon receipt if delivered personally, by U.S. Mail or
by courier or facsimile transmission, in each case addressed to a party
at the following address or such other address as each such party
furnishes to the other in accordance with this Section 12(b), and:
if to the Company:
------------------
Miravant Medical Technologies
000 Xxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with copy to:
Xxxxxxxx Xxxxxx Xxxxxxx & Hampton, LLP
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to the Purchaser:
--------------------
Princess Finance Company, a BVI company
c/o Nomina Financial Services, Ltd.
Xxxxxxxxxxxxxxx 0/XX Xxx 000
XX-0000, Xxxxxx, Xxxxxxxxxxx
Facsimile #011 41 1 267 4089
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
00 Xxxxxxxx Xxxxxx, Xxxxx 0
Xxx, XX 00000
Facsimile: (000) 000-0000
(c) Waiver. Failure of any party to exercise any right or
remedy under this Agreement or otherwise, or delay by a party in
exercising such right or remedy, shall not operate as a waiver thereof.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the Delaware General Corporation Law (in
respect of matters of corporation law) and the laws of the State of
California (in respect of all other matters) applicable to contracts
made and to be performed in the State of California. The parties hereto
irrevocably consent to the jurisdiction of the United States federal
courts and state courts located in the County of New Castle in the
State of Delaware in any suit or proceeding based on or arising under
this Agreement or the transactions contemplated hereby and irrevocably
agree that all claims in respect of such suit or proceeding may be
determined in such courts. The Company and the Purchaser each
irrevocably waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding in such forum. The Company and
the Purchaser further each agrees that service of process upon the
Company or such Purchaser, as applicable, in accordance with Section
11(b) shall be deemed in every respect effective service of process
upon the Company or such Purchaser in any suit or proceeding arising
hereunder. Nothing herein contained shall affect Purchaser's right to
serve process in any other manner permitted by law. The parties hereto
agree that a final non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
(e) Severability. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to
conform with such statute or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision hereof.
(f) Entire Agreement. This Agreement and the Purchase
Agreement (including all schedules and exhibits thereto) constitute the
entire agreement among the parties hereto with respect to the subject
matter hereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or
therein. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject
matter hereof.
(g) Successors and Assigns. Subject to the requirements of
Section 9 hereof, this Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto.
(h) Use of Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
(i) Headings. The headings and subheadings in the Agreement
are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(j) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement. This Agreement, once
executed by a party, may be delivered to the other party hereto by
facsimile transmission, and facsimile signatures shall be binding on
the parties hereto.
(k) Further Acts. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.
(l) Remedies. No provision of this Agreement providing for any
remedy to the Purchaser shall limit any remedy which would otherwise be
available to such Purchaser at law or in equity. Nothing in this
Agreement shall limit any rights a Purchaser may have with any
applicable federal or state securities laws with respect to the
investment contemplated hereby. The Company acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to a
Purchaser. Accordingly, the Company acknowledges that the remedy at law
for a breach of its obligations under this Agreement will be inadequate
and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Agreement, that a Purchaser shall be
entitled, in addition to all other available remedies, to an injunction
restraining any breach and requiring immediate compliance, without the
necessity of showing economic loss and without any bond or other
security being required.
(m) Consents. All consents and other determinations to be made
by the Purchaser pursuant to this Agreement shall be made by the
Purchaser holding 66 2/3% of the Registrable Securities, determined as
if all Warrants then outstanding had been exercised for Registrable
Securities.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
COMPANY:
MIRAVANT MEDICAL TECHNOLOGIES
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
PURCHASER:
PRINCESS FINANCE LIMITED,
a BVI company
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
