EQUITY INVESTMENT AGREEMENT
EQUITY INVESTMENT AGREEMENT (this "Agreement"), dated as of January 15,
1999, between Miravant Medical Technologies, a Delaware corporation (the
"Company"), Pharmacia & Upjohn, Inc., a Delaware corporation (the "Purchaser"),
and Pharmacia & Upjohn, S.p.A., an Italian corporation.
W I T N E S S E T H :
WHEREAS, the Company and Affiliates of the Purchaser are parties to the
Restated and Amended Development and License Agreement, dated June 8, 1998,
between Pharmacia & Upjohn S.p.A. and the Company (the "Oncology License
Agreement"), and the Amended and Restated Ophthalmology Development and License
Agreement, dated June 8, 1998, between Pharmacia & Upjohn AB and the Company
(the "Ophthalmology License Agreement" and, together with the Oncology License
Agreement, the "License Agreements"), and the parties desire to amend such
License Agreements in certain respects, as contemplated herein; and
WHEREAS, certain subsidiaries of the Purchaser are the record owners of
shares of Common Stock (as hereinafter defined), and the Purchaser wishes to
acquire additional shares of Common Stock, all on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
Definitions
Section I.1. Terms Generally. The definitions ascribed to terms in this
Agreement apply equally to both the singular and plural forms of such terms.
Whenever the context may require, any pronoun shall be deemed to include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be interpreted as if followed by the phrase
"without limitation". All references herein to the Preamble, Recitals, Articles,
Sections and Schedules shall be deemed references to the Preamble and Recitals,
Articles and Sections of, and Schedules to, this Agreement unless the context
shall otherwise require. The headings and captions herein shall not be given
effect in interpreting or construing the provisions of this Agreement. Except as
otherwise expressly provided herein, all references to "dollars" or "$" shall be
deemed references to the lawful money of the United States of America.
Section I.2. Definitions. The following terms have the meanings ascribed to
them below:
"Act" has the meaning assigned to such term in Section 6.03.
"Affiliate" means any other Person directly or indirectly controlling,
controlled by, or under common control with, that Person.
"Agreement" has the meaning assigned to such term in the preamble hereto.
"Amending Agreement" has the meaning assigned to such term specified in
Section 7.01.
"Associate" has the meaning ascribed to such term in Rule 12b-2 under the
1934 Act.
"Audited Financial Statements" has the meaning assigned to such term in
Section 4.10.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in The City of New York or in Los Angeles, California,
are authorized by law to close.
"Certificate of Incorporation" means the Restated Certificate of
Incorporation of the Company as in effect on the Closing Date.
"Closing" has the meaning assigned to such term in Section 3.02.
"Closing Date" has the meaning assigned to such term in Section 3.02.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, $.01 par value, of the Company.
"Company" has the meaning assigned to such term in the Preamble.
"Control," "controlled by" or "under common control with" means direct or
indirect possession of the power to direct or cause the direction of management
or policies (whether through ownership of voting securities, by contract or
otherwise); provided that control shall be conclusively presumed when any Person
directly or indirectly owns a majority of the securities having ordinary voting
power for the election of a majority of the directors of a corporation.
"Credit Agreement" has the meaning assigned to such term in Section 7.01.
"Disclosure Package" has the meaning assigned to such term in Section
4.09(a).
"Employee Benefit Plan" has the meaning assigned to such term in Section
4.18.
"Environmental Law" has the meaning assigned to such term in Section 4.22.
"Environmental Property" has the meaning assigned to such term in Section
4.22.
"FDA" has the meaning assigned to such term in Section 4.24.
"Hazardous Materials" has the meaning assigned to such term in Section
4.22.
"Intellectual Property Rights" has the meaning assigned to such term in
Section 4.14.
"License Agreements" has the meaning assigned to such term in the first
Recital.
"Licenses and Permits" means all governmental and private permits,
licenses, certificates of occupancy, franchises and authorizations required to
conduct the business of the Company and its Subsidiaries with operations and
products substantially the same as those of the Company immediately prior to the
consummation of the transaction contemplated hereby or as now contemplated.
"Loss" means any loss, claim, damages, or liability.
"Oncology License Agreement" has the meaning assigned to such term in the
first Recital.
"Ophthalmology License Agreement" has the meaning assigned to such term in
the first Recital.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
"Product Intellectual Property" has the meaning assigned to such term in
Section 4.13.
"Purchase Price" has the meaning assigned to such term in Section 3.01.
"Purchaser" has the meaning assigned to such term in the Preamble.
"Registration Rights Agreement" has the meaning assigned to such term in
Section 7.01.
"Securities" has the meaning assigned to such term in Section 3.01.
"Security Agreement" has the meaning specified in Section 7.01.
"Subsidiary" means any corporation, association or other business entity of
which more than 50% of the total voting power or shares of stock entitled to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by the Company or one or more of
the other Subsidiaries of the Company or a combination thereof.
"Warrant Agreement" has the meaning assigned to such term in Section 7.01.
"1933 Act" means the Securities Act of 1933, as amended and as it may be
amended from time to time, including the rules and regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended and as it
may be amended from time to time, including the rules and regulations
thereunder.
ARTICLE II
Amendments to the License Agreements
Section II.1. Amendment to the Oncology License Agreement. The Oncology
License Agreement is hereby amended ab initio, effective as of the Closing Date,
to delete therefrom Section 3.04 thereof in its entirety.
Section II.2. Amendment to Ophthalmology License Agreement. When executed
and delivered as contemplated hereby, the Amending Agreement will amend the
Ophthalmology License Agreement in certain respects, all as set forth in the
Amending Agreement.
ARTICLE III
Equity Investment
Section III.1. Issuance, Sale and Delivery of the Securities. The Company
hereby agrees, subject to the prior satisfaction or waiver in writing by the
Company of the conditions specified in Section 7.02, to issue and sell to the
Purchaser, and the Purchaser hereby agrees, subject to the prior satisfaction or
waiver in writing by the Purchaser of the conditions specified in Section 7.01,
to purchase from the Company, 1,136,533 shares of Common Stock (the
"Securities") for an aggregate purchase price equal to $19,000,000 (the
"Purchase Price").
Section III.2. Closing. The consummation of the stock purchase transaction
contemplated by Section 3.01 shall take place at Xxxxxxxx & Xxxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York time, on the fifth day
following the satisfaction or waiver by the Purchaser in writing of the last to
be satisfied or so waived of the conditions set forth in Article VII, or at such
other location, date and time as may be agreed upon between the Purchaser and
the Company (such consummation being called the "Closing" and such date and time
being called the "Closing Date"). At the Closing, (a) the Company shall deliver,
issue and sell to the Purchaser a stock certificate or certificates in the name
of the Purchaser or any Affiliate of the Purchaser designated to the Company by
the Purchaser, representing the Securities, and (b) the Purchaser shall pay the
Purchase Price by wire transfer or certified or bank cashier's check in same day
funds.
ARTICLE IV
Representations and Warranties of the Company
The Company hereby makes the following representations and warranties which
shall survive the execution and delivery of this Agreement and the issuance,
delivery and sale of the Securities pursuant hereto:
Section IV.1. Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and is duly qualified to do business in California. Neither
the Company nor any of its stockholders has adopted or taken any action in
contemplation of any plan of liquidation or dissolution of the Company. The
Company has provided the Purchaser with true, complete and correct copies of the
Certificate of Incorporation and Bylaws of the Company as in effect on the date
hereof.
Section IV.2. Corporate Power of the Company. The Company has the requisite
corporate power and authority to execute, deliver and carry out this Agreement
and all other instruments, documents and agreements contemplated or required by
the provisions of this Agreement to be executed, delivered or carried out by the
Company. The Company has all requisite corporate power and authority under the
laws of the jurisdiction of its incorporation to own and operate its properties
and to carry on its business as now conducted and as presently proposed to be
conducted. The Board of Directors and stockholders of the Company have taken all
necessary corporate action to approve this Agreement and to authorize the
execution, delivery and performance of this Agreement by the Company, the
issuance by the Company of the Securities and the consummation of the
transactions contemplated hereby. This Agreement has been duly properly executed
and delivered by the Company and constitutes the legally valid and binding
obligation of the Company enforceable against it in accordance with its terms.
Section IV.3. No Conflict. Except as set forth in Schedule 4.03, none of
(a) the approval by the Board of Directors and stockholders of the Company of
this Agreement, (b) the execution or the delivery by the Company of this
Agreement or the performance by the Company of its obligations hereunder or the
consummation of the transactions contemplated hereby or (c) the issuance by the
Company of the Securities will (A) conflict with or result in any violation or
constitute a default under the Certificate of Incorporation or Bylaws of the
Company or any agreement, mortgage, indenture, franchise, license, permit,
authorization, lease or other instrument, or any judgment, decree, order, law or
regulation by which the Company or any of its properties or assets is bound, or
(B) result in the creation or imposition of any lien, security interest, charge,
encumbrance, restriction or claim of any nature upon, or give to others any
interest or right, including any right of termination or cancellation, in or
with respect to, or otherwise adversely affect, any property, asset or business
of the Company, or (C) require the Company to obtain or make any consent,
authorization, approval, registration, declaration or filing under any statute,
law, ordinance, regulation, rule, judgment, decree or order of any court or any
governmental agency, board, bureau, body, department or authority of any United
States or foreign jurisdiction, except those which have been completed at the
date of this Agreement, or (D) conflict with any other restriction of any kind
or character to which the Company is subject or to which any of its properties
is bound.
Section IV.4. Subsidiaries. The Company has three Subsidiaries, Miravant
Cardiovascular, Inc., a Delaware corporation, Miravant Pharmaceuticals, Inc., a
Delaware corporation, and Miravant Systems, Inc., a California corporation. Each
Subsidiary is duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate power and
authority to carry on its business as now conducted and as presently proposed to
be conducted. All of the outstanding capital stock of the Company's Subsidiaries
is validly issued, fully paid and nonassessable and owned by the Company free
and clear of any lien, pledge or other encumbrance. Other than the three
Subsidiaries, the Company does not own any securities or other ownership
interests in any other Person which would entitle the Company to control such
Person.
Section IV.5. Capitalization.
(a) Authorized Shares. The authorized capital of the Company consists of
50,000,000 shares of Common Stock and 20,000,000 shares of preferred stock, of
which 500,000 shares have been designated Series A Preferred Stock. The Company
holds no shares of its capital stock in its treasury. Except as set forth in
Schedule 4.05(a) and except as disclosed in the Disclosure Package, no Person
has any agreement, subscription, option or warrant or any other right or
commitment entitling such Person to acquire from the Company any shares of the
Company's capital stock or any other securities or other instruments convertible
into or exchangeable for any such shares.
(b) Outstanding Shares. At the Closing, no more than 17,200,000 shares of
capital stock of the Company will be issued and outstanding. All of the
Securities when issued, sold and delivered in accordance with the terms hereof
and for the consideration expressed herein, will have been duly authorized and
validly issued, fully paid and non-assessable and free of any liens or
encumbrances. The issuance of the Securities will not violate any preemptive or
other rights and will be in compliance with applicable federal and state
securities laws and regulations. The Company has no obligations or agreements
concerning the repurchase of any of the shares of its outstanding capital stock.
Section IV.6. Corporate Record Keeping. The corporate record and stock
transfer books of the Company and each of its Subsidiaries are complete,
accurate and up-to-date with all necessary signatures and set forth all meetings
and actions taken by the respective incorporators, stockholders and directors of
each such party.
Section IV.7. Compliance With Laws. The Company and each of its
Subsidiaries is in compliance in all material respects with all federal, state,
local and foreign statutes, laws, ordinances, regulations, rules, judgments,
orders and decrees applicable to it or its respective assets, properties,
business or operations.
Section IV.8. Licenses and Permits. The Company is not aware of any fact
which has not been disclosed to the Purchaser which could adversely affect the
ability of the Company to obtain or maintain the Licenses and Permits (or any
consent required to be obtained with respect thereto as a result of the
transactions contemplated hereby) after consummation of the transactions
contemplated hereby on the same terms as such Licenses and Permits were held by
the Company immediately prior to the consummation of the transactions
contemplated hereby.
Section IV.9. Disclosure.
(a) The Company has delivered to the Purchaser copies of the filings made
by the Company with the Commission since December 31, 1995 and prior to the date
hereof and the press releases issued by the Company since September 30, 1998 and
prior to the date hereof (such filings and press releases collectively, the
"Disclosure Package").
(b) To the Company's knowledge, none of such statements, forms or reports
(including, without limitation, any financial statements, exhibits and schedules
included therein and documents incorporated therein by reference), as amended or
supplemented, if applicable, at the time filed, declared effective or mailed, as
the case may be, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) This Agreement and all of the Schedules delivered to the Purchaser in
connection herewith, when read together with the Disclosure Package, do not
contain any statement that is false or misleading with respect to any material
fact and do not omit to state a material fact necessary in order to make the
statements therein not false or misleading. There is no additional fact of which
the Company is aware that has not disclosed in writing to the Purchaser that in
the opinion or belief of the Company materially and adversely affects, or so far
as the Company can now reasonably foresee will materially and adversely affect,
the properties, business or condition (financial or otherwise) of the Company or
any Subsidiary.
Section IV.10. Financial Statements. The Company has furnished to the
Purchaser a true and complete copy of its audited consolidated balance sheet as
of December 31, 1997 and an audited consolidated statement of income and
retained earnings for the year then ended (the "Audited Financial Statements").
Except as disclosed in the Disclosure Package, the Audited Financial Statements
have been prepared in accordance with generally accepted accounting principles
on a basis consistent with prior periods and fairly present the financial
condition and results of operations and changes in the financial condition of
the Company and the Subsidiaries as of the dates thereof, and for the periods
indicated, subject to all normal adjustments. For purposes of this Agreement,
all references to "Audited Financial Statements" include any notes to such
statements.
Section IV.11. Litigation. There is no material suit, action, arbitration
or legal, administrative or other proceeding or pending investigation to which
the Company or any Subsidiary is a party or, to the Company's knowledge, is
threatened against the Company, or any of its Subsidiaries or their businesses,
assets or financial condition. Except as set forth in Schedule 4.11, the Company
has no knowledge of any governmental investigation against the Company or its
Subsidiaries, other than routine government contract audits. To the best of the
Company's knowledge, neither the Company nor any of its Subsidiaries is in
violation or infringement of any intellectual property right, or registrations
or applications therefor, of any other person.
Section IV.12. Conflict of Interest. Except as disclosed in the Disclosure
Package, all purchasing transactions relating to the Company and its
Subsidiaries have been at market prices since inception. No officer or director
of the Company or any Affiliate of any such person has or within the last year
has had, either directly or indirectly:
(a) an equity or debt interest in any corporation, partnership, joint
venture, association, organization or other Person which furnishes or sells or
during such period furnished or sold services or products to the Company or the
Subsidiaries, or purchases or during such period purchased from the Company or
the Subsidiaries any goods or services, or otherwise does or during such period
did business with the Company or the Subsidiaries; or
(b) a beneficial interest in any contract, commitment or agreement to which
the Company or the Subsidiaries is or was a party or under which it was
obligated or bound or to which its properties may be or may have been subject,
other than stock options and other contracts, commitments or agreements between
the Company or the Subsidiaries and such persons in their capacities as
employees, independent contractors, officers or directors of the Company or the
Subsidiaries.
Section IV.13. License Agreements and Product Intellectual Property. The
representations and warranties made by the Company in the License Agreements are
true and correct. The Company has no actual knowledge of any suit, claims or
proceedings pending or threatened with respect to the rights in the intellectual
property owned by or licensed to the Company (the "Product Intellectual
Property"). To the Company's knowledge, there are no commitments or contractual
obligations of which the Company is a party which would prohibit the Company
from entering into this Agreement or performing its obligations hereunder or
which would affect the Company's ability to amend with the Purchaser the
licenses for the Product Intellectual Property provided for in the License
Agreements.
Section IV.14. Intellectual Property Rights.
(a) To the Company's knowledge and except as disclosed in the Disclosure
Package: the Company and its Subsidiaries have good and marketable title to and
own their inventions, licenses, patents, trade secrets or other proprietary
know-how (the "Intellectual Property Rights") free and clear of all mortgages,
liens, loans and encumbrances, except such encumbrances and liens which arise in
the ordinary course of business and do not materially impair the Company's or
its Subsidiaries' ownership or use of the Intellectual Property Rights or
materially detract from the value thereof; no proceedings have been instituted
or are pending which challenge the Company's or its Subsidiaries' rights to the
Intellectual Property Rights or the validity thereof; all material rights or
inventions conceived by any employee or consultant of the Company or its
Subsidiaries during the scope of their services for the Company or its
Subsidiaries have been disclosed and effectively assigned to the Company or its
Subsidiaries; and with respect to the Intellectual Property Rights licensed by
the Company and its Subsidiaries, such licenses are in full force and effect,
the Company and its Subsidiaries are in compliance with the terms and provisions
thereof, and no event has occurred which, with notice or lapse of time or both,
would constitute a breach or violation thereof which could have a material
adverse effect on the financial condition, business or properties of the Company
and its Subsidiaries taken as a whole, and the Company and its Subsidiaries hold
a valid license free of any liens, claims or encumbrances which do not and will
not, individually or in the aggregate, have a material adverse effect on the
financial condition, business or properties of the Company and its Subsidiaries
taken as a whole.
(b) To the Company's knowledge, the Company and its Subsidiaries have the
right and authority to use the Intellectual Property Rights in connection with
the conduct of the business of the Company and its Subsidiaries in the manner
and to the extent such business is presently conducted and as it is proposed to
be conducted, and the Company and its Subsidiaries have not been notified of any
claim that such use conflicts with, infringes upon or violates any rights of any
other Person, except to the extent that such conflict, infringement or violation
does not and will not, individually or in the aggregate, have a material adverse
effect.
Section IV.15. Material Contracts. Except as set forth on Schedule 4.15 and
except as disclosed in the Disclosure Package, there are no material agreements,
undertakings, instruments, contracts or proposed transactions to which the
Company or any of the Subsidiaries is a party or by which it is bound which
involve an option, license or agreement of any kind with respect to the
Intellectual Property Rights of the Company or its Subsidiaries, or the
prohibition or limitation of the Company's or any of its Subsidiaries' ability
to engage in their respective businesses or any other business or to compete
with any Person.
Section IV.16. No Undisclosed Liabilities. Except as disclosed in the
Disclosure Package, there are no liabilities or obligations of any nature,
whether absolute, accrued, contingent or otherwise, and whether due or to become
due (including, without limitation, any liability for taxes and interest,
penalties and other charges payable with respect to any such liability or
obligations) which individually or in the aggregate are material to the
condition (financial or otherwise) of the Company, or prospects of the Company,
which are not disclosed in the Audited Financial Statements, or incurred in the
ordinary course of business subsequent to the latest of the Audited Financial
Statements.
Section IV.17. Changes. Except as disclosed in the Disclosure
Package and except as set forth in Schedule 4.17 or disclosed elsewhere in this
Agreement, since December 31, 1997, except as filed with the Commission, or
disclosed elsewhere in this Agreement there has not been:
(a) any material change in the assets, liabilities (contingent
or otherwise), obligations, condition (financial or otherwise) or operating
results of the Company or any of the Subsidiaries, except operating losses and
changes in the ordinary course of business from that reflected in the Audited
Financial Statements or subsequent financial statements filed with the
Commission;
(b) any material waiver by the Company and its Subsidiaries of
a valuable right which is material to the Company's and its Subsidiaries'
business or of a material debt owed to it;
(c) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company and its Subsidiaries,
except in the ordinary course of business and which is not material to the
assets, properties, financial condition, operating results, prospects or
business of the Company and its Subsidiaries (as such business is presently
conducted and as it is planned to be conducted);
(d) any material change or amendment to a material contract or
arrangement by which the Company and its Subsidiaries or any of its assets or
properties is bound or subject; or
(e) any other material adverse change in the business or
prospects of the Company and its Subsidiaries (as such business is presently
conducted or planned to be conducted).
Section IV.18. Employee Benefit Plans. No prohibited
transaction (as defined under Section 4975 of the Internal Revenue Code of 1986,
as amended) has occurred. The Company has received a favorable determination of
qualification from the Internal Revenue Service for each employee benefit plan
(as defined in Section 3(3) of ERISA)("Employee Benefit Plan") in which
employees of the Company or the Subsidiaries participate. The financial
statements of the Company accurately reflect all liabilities owed by the Company
to past and present employees or their beneficiaries arising out of such
employees' employment with the Company pursuant to such Employee Benefit Plans.
All amounts required under the terms of any Employee Benefit Plan to have been
paid or accrued as contributions to such Employee Benefit Plan by the Company as
of the last day of the most recent fiscal year of such Plan ended on or before
the date of this Agreement have been paid or accrued.
Section IV.19. Employee Relations. The Company is not bound by
or subject to (and none of its assets or properties is bound by or subject to)
any written or oral, express or implied, contract, commitment or arrangement
with any labor union, and no labor union has requested or, to the knowledge of
the Company, sought to represent any of the employees, representatives or agents
of the Company or any of its Subsidiaries. There is no strike or other labor
dispute involving the Company or any of its Subsidiaries pending, or to the
knowledge of the Company threatened, which could have a material adverse effect
on the assets, properties, financial condition, prospects or business (as now
conducted or as proposed to be conducted) of the Company, nor is the Company
aware of any labor organization activity involving its or its Subsidiaries'
employees. The Company is not aware that any officer or key employee intends to
terminate his or her employment with the Company or any of its Subsidiaries, nor
does the Company intend to terminate the employment of any such person. The
Company believes its relations with its employees are satisfactory.
Section IV.20. Taxes. All required foreign, federal, state and
local tax returns, notices and reports of the Company and its Subsidiaries have
been accurately prepared and duly and timely filed, and all foreign, federal,
state, local and other taxes required to be paid with respect to the periods
covered by such returns have been paid, except such returns and taxes with
respect to which the failure to pay or file would not have a material adverse
effect. The Company has never had any tax deficiency proposed or assessed
against it which would have a material adverse effect, has not executed any
waiver or extension of any statute of limitations on the assessment or
collection of any taxes which would have a material adverse effect and none of
the Company's federal or state tax returns has ever been audited by governmental
authorities. No tax audit, action, suit, proceeding, investigation, examination
or claim is now pending or, to the Company's knowledge, threatened against the
Company, and no issue or question has been communicated to the Company (and is
currently pending) by any taxing authority in connection with any of the
Company's tax returns or reports.
Section IV.21. Use of Proceeds. The proceeds of the sale of the Securities
to the Purchaser hereunder shall be used by the Company for working capital and
other general corporate purposes.
Section IV.22. Environmental Matters. To the Company's best knowledge after
reasonable inquiry:
(a) all assets and property currently or previously owned,
leased, operated or used by the Company or any of the Subsidiaries in connection
with their businesses ("Environmental Property"), all current and previous
conditions on and uses of the Environmental Property and all current and
previous ownership and operations of the Environmental Property and the Company
and the Subsidiaries (including, without limitation, transportation and disposal
of Hazardous Materials by or for the Company or the Subsidiaries) comply, have
at all times complied, and will comply with, and do not cause, and have not
caused, liability to be incurred by the Company or the Subsidiaries under any
current or past federal or state law relating to the protection of health or the
environment, including, without limitation, the common law, including the law of
nuisance and strict liability ("Environmental Law") except where non-compliance
has had and will have no material adverse effect; and neither the Company nor
any of the Subsidiaries is in violation of and has not violated any
Environmental Law which violation has had or will have a material adverse
effect;
(b) the Company has properly obtained and is in compliance
with all necessary permits, registrations, approvals and licenses, and has
properly made all filings with and submissions to any government or other
authority, required by any Environmental Law the failure of which to obtain,
comply with or make would have a material adverse effect. No deficiencies have
been asserted by any such government or authority with respect to such items
which deficiencies have had or will have a material adverse effect; and
(c) there has been no spill, discharge, leak, leaching,
emission, migration, injection, disposal, escape, dumping or release of any kind
on, beneath, above or into the Environmental Property or into the environment
surrounding the Environmental Property of any (i) pollutants or contaminants,
other than automobile emissions, (ii) hazardous, toxic, infectious or
radioactive substances, chemicals, materials or wastes (including, without
limitation, those defined as hazardous under any Environmental Law), (iii)
petroleum including crude oil or any derivative or fraction thereof, (iv)
asbestos fibers, other than contained in automobile brake linings or (v) solid
wastes ((i)-(v) collectively, "Hazardous Materials") which have had or will have
a material adverse effect.
Section IV.23. Registration Rights; Voting Trust Agreements.
Except as described in the Disclosure Package, the Company is not a party to any
contract or commitment which requires the Company to register (now or in the
future, whether contingent or not) under the 1933 Act any of its capital stock.
The Company is not a party to, nor aware of, any stockholder agreements, voting
trusts, proxies or other agreements or understandings with respect to the voting
of any of the capital stock of the Company.
Section IV.24. FDA Matters. Except as disclosed to the
Purchaser in writing, there are no applications or other proceedings presently
pending before the United States Food and Drug Administration (the "FDA"). The
FDA has not delivered a letter of non-approval or threatened to deliver such a
letter with respect to any product manufactured, marketed, licensed or developed
by the Company or any Subsidiary, or any product which the Company or its
Subsidiaries intend to manufacture, market, license or develop.
Section IV.25. Warranties and Representations. All of the foregoing
representations and warranties will survive for a period of one year from the
Closing Date.
ARTICLE V
Covenants
The Company covenants and agrees that so long as the Purchaser
and its Affiliates own more than 5% of the outstanding shares of Common Stock of
the Company, unless the Purchaser shall otherwise consent in writing, it will:
Section V.1. Financial Information. Furnish or cause to be furnished to the
Purchaser the following financial statements and information, which shall be
prepared on a substantially consistent basis:
(a) As soon as available but in any event within 100 days
after the close of each fiscal year of the Company, audited consolidated balance
sheets of the Company and of each of its Subsidiaries as of the close of such
fiscal year, and audited consolidated statements of income, stockholders' equity
and cash flow of the Company and each of its Subsidiaries for such fiscal year,
prepared in accordance with generally accepted accounting principles, setting
forth, in the case of each consolidated balance sheet and consolidated
statement, in comparative form, corresponding figures for the preceding fiscal
year, together with copies of the reports and certificates relating thereto,
including an opinion of Ernst & Young LLP or other independent certified public
accountants of recognized national standing selected by the Company. The Company
and the Purchaser agree that so long as the Company is subject to the reporting
obligations of Section 13 of the 1934 Act pursuant to Section 12(b) or 12(g) of
the 1934 Act, the Company's Annual Report on Form 10-K shall satisfy the
requirements of this Section 5.01(a).
(b) As soon as available but in any event within 60 days after
the end of each fiscal quarter of the Company (i) a consolidated balance sheet
of the Company and its Subsidiaries as of the last day of such fiscal quarter
and consolidated statements of income and cash flow of the Company and each of
its Subsidiaries for such quarter and for the period from the beginning of the
then current fiscal year to the end of such quarter, setting forth in
comparative form corresponding figures for the same quarter and period in the
preceding fiscal year and for the same quarter and period in the current year
and (ii) a consolidating balance sheet for the Company and each of its
Subsidiaries as of the close of such quarter and consolidating statements of
earnings and cash flow for the Company and each of its Subsidiaries for such
quarter and for the period from the beginning of the then current fiscal year to
the end of such quarter, each balance sheet and statement of earnings and cash
flow referred to in this Section to be certified by the principal financial
officer of the Company, provided that any such certificate may state that the
accompanying balance sheet and statements are subject to normal year-end
adjustments based on year-end audit. The Company and the Purchaser agree that so
long as the Company is subject to the reporting obligations of Section 13 of the
1934 Act pursuant to Section 12(b) or 12(g) of the 1934 Act, the Company's
Quarterly Report on Form 10-Q shall satisfy the requirements of this Section
5.01(b).
(c) From time to time, with reasonable promptness, such
additional financial statements and information with respect to the financial
condition of the Company and of its Subsidiaries as the Purchaser may reasonably
request, including, without limitation and without further request, any
financial statements or reports (including comment letters to management)
furnished to the Company or any Subsidiary by its independent certified public
accountants, any and all registration statements, proxy statements and periodic
reports filed by the Company or any Subsidiary with the Commission pursuant to
the 1933 Act or the 1934 Act, and all material press releases issued by or on
behalf of the Company or any Subsidiary.
Section V.2. Access to Information. Provide such information
concerning the operations of the Company and its Subsidiaries as the Purchaser
may from time to time reasonably request in writing, and upon reasonable advance
notice permit representatives of the Purchaser full and free access during
normal business hours to the properties, books and records of the Company and
its Subsidiaries; provided that the Company shall not be required to disclose
any confidential information or information held as a trade secret, and to
discuss the affairs, accounts and finances of the Company or any of its
Subsidiaries with the financial and management personnel of the Company and its
Subsidiaries and with their independent certified public accountants.
Section V.3. Board of Directors' Meetings. The Purchaser shall
receive notices of any and all Board of Directors' meetings in accordance with
the Bylaws of the Company and shall be entitled to attend, as an observer, all
such Board of Directors' meetings. In addition, the Company will provide the
Purchaser with copies of any written consents of the Board of Directors at the
time they are signed by the Board of Directors.
Section V.4. Rule 144. The Company agrees to make and keep
public information regarding the Company available as those terms are understood
and defined in Rule 144 promulgated under the 1933 Act, at all times following
the date of the Company's initial public offering, and to file with the
Commission in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act, at any time that it is subject to
such reporting requirements.
ARTICLE VI
Representations, Warranties and Covenants of the Purchaser;
Transfer of Securities
Section VI.1. Representations of the Purchaser. The Purchaser hereby
represents and warrants to the Company as follows:
(a) The Purchaser is a corporation organized under the laws of
Delaware having its principal place of business in Bridgewater, New Jersey.
(b) The Purchaser has the requisite corporate power and
authority to execute, deliver and carry out this Agreement and all other
instruments, documents and agreements contemplated or required by the provisions
of this Agreement to be executed, delivered or carried out by the Purchaser.
This Agreement constitutes the legally valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms.
(c) The Purchaser is an "accredited investor" within the
meaning of Regulation D under the 1933 Act, and is acquiring the Securities for
investment for its own account, and not with a view to distribution subject,
nevertheless, to any requirement of law that the disposition of its property
shall at all times be within its control. The Purchaser has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of purchasing the Securities. The Purchaser is aware that
it may be required to bear the economic risk of an investment in the Securities
for an indefinite period, and it is able to bear such risk for an indefinite
period. The Purchaser acknowledges (a) that the Securities being acquired by it
are not being registered under the 1933 Act on the grounds that the issuance of
such securities is exempt from registration under Section 4(2) of the 1933 Act
as not involving any public offering, and (b) that the Company's reliance on
such exemption is predicated in part on the representations made to the Company
by the Purchaser in this Section 6.01.
Section VI.2. Transfer of Securities. The Purchaser will not sell, assign
or transfer all or any part of the Securities acquired by it except as follows:
(a) The Securities or any part thereof or interest therein may
be assigned or transferred to an Affiliate of the Purchaser for its own account
or in connection with a sale of the Purchaser or its portfolio assets; provided
that such assignment or transfer is made in compliance with applicable
securities laws.
(b) The Securities or any part thereof or interest therein may
be assigned or transferred if such transfer is determined by the Purchaser and
its counsel, which may be in-house counsel to the Purchaser, to be necessary in
order to comply with applicable laws, rules or regulations; provided that such
assignment or transfer is made in compliance with applicable securities laws.
(c) The Securities or any part thereof or interest therein may
be assigned or transferred to any other Person or Persons; provided that the
Purchaser shall have furnished to the Company, if reasonably requested to do so,
either (i) an opinion, reasonably satisfactory to counsel for the Company, of
counsel skilled in securities matters (selected by the Purchaser and reasonably
satisfactory to the Company, it being understood and agreed that Xxxxxxxx &
Xxxxxxxx is and will be reasonably satisfactory to the Company) to the effect
that the proposed sale or transfer may be made without registration under the
1933 Act, or (ii) an interpretive letter from the Commission to the effect that
no enforcement action will be recommended if the proposed sale or transfer is
made without registration under the 1933 Act, in either case accompanied by
evidence reasonably satisfactory to the Company that such transfer will be in
compliance with applicable state securities ("blue sky") laws; provided,
however, that the foregoing proviso shall not apply with respect to any transfer
pursuant to an effective registration statement under the 1933 Act.
Upon the assignment or transfer by the Purchaser of all or any
part of the Securities or its interest therein pursuant to paragraphs (a), (b)
or (c) above, the term "the Purchaser", as used herein, shall thereafter
include, to the extent of the interest so assigned or transferred, the assignee
or transferee of such interest provided, however, that the foregoing shall not
apply with respect to any transfer pursuant to an effective registration
statement under the 1933 Act.
Section VI.3. Private Placement; Legends. The Purchaser
acknowledges and agrees that the Securities have not been registered under the
1933 Act and may not be offered or sold in the United States or to U.S. persons
(as defined in Regulation S) unless the Securities are registered under the 1933
Act, or an exemption from the registration requirements of the 1933 Act is
available. Each certificate evidencing any Securities shall bear a legend in
substantially the following form:
The securities represented by this certificate are subject to an Equity
Investment Agreement, dated January 15, 1999, a copy of which is on
file at the principal office of the Company and will be furnished to
the holder on request to the Secretary of the Company. Such Equity
Investment Agreement provides, among other things, for certain
restrictions on sale, transfer, pledge, hypotheca-tion or other
disposition of the securities evidenced by this certificate.
In addition, unless counsel to the Company shall have advised
the Company that such legend is no longer needed, each certificate evidencing
the Securities shall bear a legend in substantially the following form:
The securities represented by this certificate have not been registered
pursuant to the Securities Act of 1933, as amended (the "Act"), or any
state securities law, and such securities may not be sold, transferred
or otherwise disposed of unless the same are registered and qualified
in accordance with the Act and any applicable state securities laws, or
in the opinion of counsel reasonably satisfactory to the Company such
registration and qualification are not required.
The Purchaser shall have the right to request that the Company
remove such legends if the conditions of Rule 144 of the 1933 Act have been
satisfied with respect to the Securities evidenced by such certificate, or if
such Securities are otherwise registered in accordance with the 1933 Act or
another exemption from such registration is available, and the Company shall
fully cooperate with the Purchaser if any of the foregoing conditions are
satisfied; provided in each case other than registration under the 1933 Act that
the Purchaser shall have furnished to the Company, if reasonably requested to do
so, an opinion or interpretive letter and such other evidence as is referenced
in Section 6.02(c) for a transfer of such Securities.
ARTICLE VII
Conditions to Closing
Section VII.1. Conditions to the Purchaser's Obligations. The
obligation of the Purchaser to purchase the Securities is subject to the prior
satisfaction, or waiver in writing by the Purchaser, of all of the following
conditions:
(a) The representations and warranties of the Company
contained in Article IV shall be true in all material respects as of the Closing
Date as though made at and as of the Closing Date.
(b) The Company shall have performed, in all material
respects, all covenants, agreements and obligations required to be performed by
it on or prior to the Closing Date pursuant to this Agreement.
(c) A Credit Agreement in the form attached hereto as Exhibit
A (the "Credit Agreement"), a Warrant Agreement in the form attached hereto as
Exhibit B (the "Warrant Agreement"), a Security Agreement in the form attached
hereto as Exhibit C (the "Security Agreement"), a Registration Rights Agreement
in the form attached hereto as Exhibit D (the "Registration Rights Agreement")
and an Amended and Restated Ophthalmology Development & License Agreement in the
form attached hereto as Exhibit E (the "Amending Agreement") shall have been
duly executed and delivered by the parties thereto.
(d) The Purchaser shall have received the opinion of Nida &
Xxxxxxx PC in the form attached hereto as Exhibit F.
(e) On or prior to the Closing Date, the Company shall tender
to the Purchaser certificate(s) representing the Securities.
(f) The Company and the Purchaser shall have obtained all
necessary authorizations, consents or approvals or other orders or actions
necessary or appropriate for the consummation of the transactions contemplated
by this Agreement, and the Company and the Purchaser shall have made all
necessary filings with any court, administrative agency, or other governmental
or regulatory body or authority required for the execution and delivery by the
Company and the Purchaser of this Agreement or the Company's and the Purchaser's
consummation of the transactions contemplated hereby.
(g) No action, suit, proceeding or investigation by or before
any court, administrative agency or other governmental authority shall have been
instituted or threatened which may restrain, prohibit or invalidate any of the
transactions contemplated by this Agreement.
(h) The waiting period (including any extension thereof)
applicable to the Purchaser's acquisition of the Securities pursuant to this
Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, shall have expired or been terminated, and the Purchaser shall have
received evidence thereof satisfactory to the Purchaser.
Section VII.2. Conditions to the Company's Obligations. The
obligation of the Company to issue, deliver and sell the Securities is subject
to the prior satisfaction or waiver in writing by the Company of all of the
following conditions:
(a) The representations and warranties of the Purchaser
contained in Section 6.01 shall be true in all material respects as of the
Closing Date as though made at and as of the Closing Date.
(b) The Purchaser shall have performed, in all material
respects, all covenants, agreements and obligations required to be performed by
it on or prior to the Closing Date pursuant to this Agreement.
(c) The Credit Agreement, Warrant Agreement, Security
Agreement, Registration Rights Agreement and Amending Agreement shall have been
duly executed and delivered by the parties thereto.
(d) On the Closing Date, the Purchaser shall tender to the
Company the Purchase Price.
(e) The Company and the Purchaser shall have obtained all
necessary authorizations, consents or approvals or other orders or actions
necessary or appropriate for the consummation of the transactions contemplated
by this Agreement, and the Company and the Purchaser shall have made all
necessary filings with any court, administrative agency, or other governmental
or regulatory body or authority required for the execution and delivery by the
Company and the Purchaser of this Agreement or the Company's and the Purchaser's
consummation of the transactions contemplated hereby.
(f) No action, suit, proceeding or investigation by or before
any court, administrative agency or other governmental authority shall have been
instituted or threatened which may restrain, prohibit or invalidate any of the
transactions contemplated by this Agreement.
(g) The waiting period (including any extension thereof)
applicable to the Purchaser's acquisition of the Securities pursuant to this
Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, shall have expired or been terminated, and the Company shall have
received evidence thereof satisfactory to the Company.
ARTICLE VIII
Indemnity
Section VIII.1. General. The Company shall indemnify, defend
and save harmless the Purchaser from, against, for and in respect of any Loss
which arises out of or relates to (i) a state of facts as a result of which any
representation made by the Company in Article IV hereof or in any document
delivered pursuant to this Agreement is untrue, inaccurate or misleading in any
respect as of the date hereof, or (ii) the breach of any warranty made by the
Company in Article IV hereof, or (iii) the failure of the Company to comply
with, perform or observe any other term, provision or condition contained in
this Agreement or in any document delivered pursuant to this Agreement; and any
reasonable expenses incurred in connection with investigating, defending or
asserting any claim, action, suit or proceeding incident to any matter
indemnified against hereunder, including, without limitation, court filing fees,
court costs, arbitration fees or costs, witness fees, and fees and disbursements
of legal counsel, investigators, expert witnesses, accountants and other
professionals in connection therewith.
Section VIII.2. Cooperation. Each of the parties hereto agrees
to render to the other parties such assistance as they may reasonably require
and to cooperate in good faith with the other parties in order to ensure the
proper and adequate defense of any claim, action, suit or proceeding brought by
any third party.
Section VIII.3. Remedies Cumulative. The remedies of the
parties provided for in this Article VIII shall be cumulative, shall not
preclude the assertion by any party of any other rights such party may have
under this Agreement, applicable law or otherwise (including rescission) and
shall survive redemption or repurchase of the Securities.
ARTICLE IX
Effectiveness of Agreement
Section IX.1. General. Except as otherwise provided herein,
the provisions of this Agreement shall continue in full force and effect for the
benefit of the holders of the Securities so long as any shares of the Securities
are held by the Purchaser or its Affiliates. The representations and warranties
made herein or in connection herewith shall survive the issuance, delivery and
sale of the Securities.
ARTICLE X
Lockup and Standstill Agreements
Section X.1. Lockup. Prior to the 180th calendar day following
the Closing Date, the Purchaser shall not, and shall cause its Affiliates not
to, sell, assign, transfer or otherwise dispose of any of the Securities, except
that the Purchaser may transfer any of the Securities to any of its wholly owned
subsidiaries.
Section X.2. Standstill.
(a) The Stock Purchase Agreement, dated as of July 1, 1995,
between the Company and Pharmacia & Upjohn S.p.A. is hereby amended ab initio,
effective as of the date thereof, to delete therefrom Section 5.5 thereof in its
entirety.
(b) Prior to the earliest of (i) the occurrence of an Event of
Default (as defined in the Credit Agreement), (ii) the commencement of a tender
offer by any Person, other than Pharmacia & Upjohn, Inc. or any of its wholly
owned subsidiaries, for shares of Common Stock, and (iii) July 1, 2000, unless
specifically requested in advance by the Company's Board of Directors, neither
the Purchaser nor any of the Purchasers' Affiliates will, and the Purchaser and
its Affiliates will not assist or encourage others (including by providing
financing) to, directly or indirectly, acquire or agree, offer, seek or propose
to acquire ownership of any securities issued by the Company (including but not
limited to beneficial ownership (as defined in Rule 13d-3 under the 1934 Act))
or enter into any discussions, negotiations, arrangements or understandings with
any Person with respect to any of the foregoing; provided that this Section
10.02(b) shall not prohibit (i) the acquisition by the Purchaser and its
Affiliates of a number of shares of Common Stock which, taken together with the
number of shares of Common Stock held by the Purchaser and its Affiliates as of
the date of such acquisition, does not exceed 25% of the aggregate number of
outstanding shares of Common Stock as of the date of this acquisition, (ii) the
acquisition by the Purchaser or its Affiliates of shares of Common Stock
pursuant to Section 2.03 of the Credit Agreement or upon exercise of any
Warrants (as defined in the Credit Agreement), or (iii) the acquisition by the
Purchaser or its Affiliates of promissory notes pursuant to the Credit Agreement
or any other securities pursuant to the Credit Documents (as defined in the
Credit Agreement).
ARTICLE XI
Miscellaneous
Section XI.1. APPLICABLE LAW. THIS AGREEMENT AND ALL RIGHTS
ARISING HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE.
SECTION XI.2. WAIVER OF JURY. THE COMPANY AND THE PURCHASER
EACH HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT AND ANY
RIGHT ARISING HEREUNDER.
Section XI.3. Jurisdiction and Venue; Service of Process. (a)
The Company and the Purchaser each hereby irrevocably submits to the
non-exclusive jurisdiction of any state or federal court in the Borough of
Manhattan, The City of New York for the purpose of any suit, action, proceeding
or judgment relating to or arising out of this Agreement and any right arising
hereunder, and to the laying of venue in the Borough of Manhattan, The City of
New York. The Company and the Purchaser each hereby irrevocably waives, to the
fullest extent permitted by applicable law, any objection to the laying of the
venue of any such suit, action or proceeding brought in the aforesaid courts and
hereby irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
(b) The Company agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
the Company at its address set forth in Section 11.06 or at such other address
of which the Purchaser shall have been notified pursuant thereto. The Company
further agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to xxx in
any other jurisdiction.
(c) Each of the Company and the Purchaser waives, to the
maximum extent not prohibited by law, any right it may have to claim or recover
in any legal action or proceeding referred to in this Section 11.03 any special,
exemplary, punitive or consequential damages.
Section XI.4. Amendments and Waivers.
(a) Any provision of this Agreement may be amended, modified,
supplemented or waived, but only by a written amendment or supplement, or
written waiver, signed by the Company and the Purchaser.
(b) Except to the extent expressly set forth therein, any
waiver shall be effective only in the specific instance and for the specific
purpose for which such waiver is given.
Section XI.5. Cumulative Rights; No Waiver. Each and every
right granted to the Purchaser or allowed the Purchaser by law or equity, shall
be cumulative and not exclusive and may be exercised from time to time. No
failure on the part of the Purchaser to exercise, and no delay in exercising,
any right will operate as a waiver thereof, nor will any single or partial
exercise by the Purchaser of any right preclude any other or future exercise
thereof or the exercise of any other right.
Section XI.6. Notices. Any communication, demand or notice to
be given hereunder will be duly given when delivered in writing or by telecopy
to a party at its address as indicated below or such other address as such party
may specify in a notice to each other party hereto. A communication, demand or
notice given pursuant to this Section 11.06 shall be addressed:
If to the Company, to
Miravant Medical Technologies
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
with a copy (which, in and of itself, shall not constitute notice) to
Nida & Xxxxxxx PC
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
If to the Purchaser, to
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Treasurer
and
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Senior Vice President
of Business Development
and
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy (which, in and of itself, shall not constitute notice) to
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxx
and Xxxxxx X. Xxxxxxx
(b) Unless otherwise provided to the contrary herein, any
notice which is required to be given in writing pursuant to the terms of this
Agreement may be given by telecopy.
Section XI.7. Separability. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
Section XI.8. Persons Benefitting. This Agreement shall be
binding upon and inure to the benefit of the Purchaser and the Company, and
their respective successors, assigns, beneficiaries, executors and
administrators. Nothing in this Agreement is intended or shall be construed to
confer upon any Person, other than the Company and the Purchaser (and such
successors, assigns, beneficiaries, executors and administrators), any right,
remedy or claim under or by reason of this Agreement or any part hereof. This
Agreement may not be assigned without the written consent of the parties hereto,
and any purported assignment made in violation of this provision shall be null
and void. The provisions of the previous sentence notwithstanding, the Purchaser
may assign its rights and obligations under this Agreement to any of its wholly
owned Subsidiaries without the consent of any other party to this Agreement.
Section XI.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
Section XI.10. Headings. The descriptive headings of the several Sections
of this Agreement are inserted for convenience and shall not control or affect
the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date first above written.
MIRAVANT MEDICAL TECHNOLOGIES
By:________________________________
Name:
Title:
PHARMACIA & UPJOHN, INC.
By:________________________________
Name:
Title:
PHARMACIA & UPJOHN, S.p.A.
By:________________________________
Name:
Title:
