AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT ("Agreement") is entered into as of
June 30, 1998 by and between MIRAVANT MEDICAL TECHNOLOGIES, a Delaware
corporation (the "Company"), with headquarters located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 and the persons ("Purchasers") set forth on the
execution pages hereof, with regard to the following:
RECITALS
A. On September 25, 1997, the Purchasers purchased from the Company shares of
common stock of the Company ("Common Shares") and Stock Purchase Warrants
("Warrants") pursuant to a Securities Purchase Agreement ("Purchase Agreement")
entered into as of September 22, 1997. B. As part of the foregoing transaction,
the Company and the Purchasers entered into a Registration Rights Agreement
("Registration Agreement") and Lock-Up Agreements ("Lock-Up Agreements") each
dated as of September 22, 1997. (The Purchase Agreement, Warrants, Registration
Agreement and Lock-Up Agreements are sometimes collectively referred to as the
"Transaction Documents." Terms used in this Agreement and not otherwise defined
herein shall have the meaning provided for such terms in the Transaction
Documents.) C. The parties hereto desire to amend and supplement the Transaction
Documents in the manner hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of their respective promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchasers
hereby agree as follows: 1. Section 5.3 (Additional Shares or Cash Payment) of
the Purchase Agreement is hereby deleted in its entirety and in place thereof
the following is hereby added:
"5.3 Additional Shares or Cash Payment. If on a Monthly
Anniversary Date (as hereinafter defined) the thirty calendar
day average closing bid price (the "Monthly Anniversary
Price") of the Common Stock (as reported by Bloomberg, L.P.)
for the period ending on the trading day prior to such Monthly
Anniversary Date (the "Monthly Pricing Period") is less than
$50 (the "Closing Price"), then the Company shall, at the
Company's sole option (except as provided below), either or in
combination:
(a) Pay to each Purchaser, within 3 business days after such
Monthly Anniversary Date, in cash, an amount determined in
accordance with the following formula:
P = (C - A) * S
where:
P = the aggregate payment to be made to such
Purchaser, expressed in dollars;
C = the Closing Price;
A = the Monthly Anniversary Price; and
S = one-eighth (1/8th) of the aggregate number of the
Common Shares purchased by the Purchaser and not sold
or assigned (other than to an affiliate of the
Purchaser) in accordance with Section 1.2 of the
Lock-Up Agreement during the period from the date of
the Closing through the Initial Monthly Anniversary
Date; or
(a) Issue, within 3 business days after such Monthly Anniversary
Date, to each Purchaser a number of additional shares of
Common Stock equal to (i) the dollar amount calculated
pursuant to Section 5.3(a) with respect to such Purchaser
divided by (ii) the Monthly Anniversary Price.
The foregoing P, C, A and S shall be equitably adjusted to
reflect the effect of any stock dividends, stock splits,
reverse stock splits, discounted equity offerings or actions
similar to any of the foregoing.
The quantity S shall not be reduced by virtue of any Common
Shares released from the Lock-Up Agreement by virtue of
Section 1.5 thereof, but will be reduced if, prior to a
Monthly Anniversary Date (the "Subject Monthly Anniversary
Date"), Common Shares that have been purchased by a Purchaser
have been sold or assigned (other than to an affiliate of such
Purchaser) in accordance with Section 1.2 of the Lock-Up
Agreement during the period from the date following the
preceding Monthly Anniversary Date through the Subject Monthly
Anniversary Date (or, if the Subject Monthly Anniversary Date
is the Initial Monthly Anniversary Date, during Monthly
Pricing Period relating to the Initial Monthly Anniversary
Date), by reducing the quantity S (for purposes of
calculations in respect of the Subject Monthly Anniversary
Date only) by the number of Common Shares so sold (the
"Disposed Shares") as contemplated by this sentence. For
example, if S is 50,000 and between the preceding Monthly
Anniversary Date and the Subject Anniversary Date the
Purchaser Sold 5,000 Common Shares pursuant to Section 1.2 of
the Lock-Up Agreement, then S will be reduced for that Subject
Monthly Anniversary Date only by 5,000 to 45,000, representing
50,000 less 5,000. If the number of Disposed Shares is greater
than the quantity S, then the quantity S shall be reduced to
zero for that Subject Monthly Anniversary Date, and the amount
by which the Disposed Shares exceeds the quantity S shall be
applied to reduce the quantity S for the immediately
succeeding Monthly Anniversary Date only.
The term Monthly Anniversary Date shall mean August 1, 1998
(the "Initial Monthly Anniversary Date"), and each monthly
anniversary thereof ending on the same day of the next
succeeding month, through and including March 1, 1999 (the
"Final Monthly Anniversary Date") (for a total of 8 Monthly
Anniversary Dates in the aggregate).
In the event, as to any Monthly Anniversary Date, the Monthly
Anniversary Price is less than $25, then not less than the
amount determined in accordance with the following formula
shall be paid to each Purchaser in cash: P (cash) = ($25 - A)
x S.
If the Company intends to satisfy its obligations under this
Section 5.3 through the issuance of additional Common Stock
pursuant to Section 5.3(b), the following conditions shall
apply: (u) the issuance of Common Stock will only be permitted
to the extent that such issuance will not result in any
Purchaser, or any group which such entity will be deemed under
the Securities Act to be a part of, solely as a result of the
issuance of such additional shares, the Common Shares and the
Warrant Shares, having beneficial ownership (as defined in
Section 13(d) of the Securities Act) of more than 9.9% of the
Common Stock; (w) Common Stock shall be listed on NASDAQ, NYSE
or AMEX; (x) the Company shall issue only freely tradable,
registered and unlegended Common Stock; (y) the Company must
provide each Purchaser on or before the applicable Monthly
Anniversary Date notice (in the form of Exhibit A annexed) of
its election to so issue Common Stock; and (z) the Company
must satisfy its obligations under Section 5.3 through the
issuance of Common Stock to each of the Purchasers who
continue to hold Common Shares. Notwithstanding anything in
this Section 5.3 to the contrary, no holder of any shares of
Common Stock other than the initial Purchasers signatory
hereto and any permitted assignee who receives restricted
securities pursuant to Section 8.7 shall be entitled to
payments or additional shares of Common Stock from the Company
pursuant to this Section 5.3. The Company will have no
obligations under this Section 5.3 with respect to the
Warrants or the Warrant Shares."
1. Section 4.12 (Cash Maintenance Requirement) of the Purchase Agreement is
hereby amended by deleting the words "through the first anniversary of the date
of the Closing", and in place thereof inserting the words "through the Final
Monthly Anniversary Date". 2. Each of the Warrants are hereby amended as
follows: (a) The Exercise Price is hereby established to be $35 per Share, in
place of the per Share Exercise Price currently set forth in the Warrants. (b)
The Company shall be entitled to redeem the Warrants (but not the Additional
Warrants, as hereinafter defined) for the price of one cent in the event that
the closing bid price of the Common Stock for the 20 consecutive trading days
immediately preceding a particular date (the "Calculation Date") is greater than
$60 per Share; provided, however, that the Company shall have such right if and
only if at all times during such 20 trading day period the Shares of Common
Stock were listed on NASDAQ National Market, the New York Stock Exchange or the
American Stock Exchange and at all times during such period of time the Shares
issuable upon exercise of the Warrants were registered for resale pursuant to an
effective registration statement, were included in a current and deliverable
prospectus, and were listed for trading on each principal exchange or market on
which the shares of Common Stock of the Company were then traded. If the Company
wishes to redeem Warrants, it shall within three (3) trading days of the
Calculation Date (the "Notice Date") give each Purchaser written irrevocable
notice of its intent to redeem the Warrants or else be prohibited from redeeming
Warrants in connection with such Calculation Date. That irrevocable written
notice shall specify the number of Warrants to be redeemed (i.e., the number of
Warrant Shares that will cease to be issuable pursuant to the Warrants); the
Warrants shall be exercisable through and including the date set for redemption,
which shall be five (5) trading days after the Notice Date. If the Company
chooses to submit a notice to redeem Warrants covering a greater number of
Warrant Shares than the proportionate number of Warrant Shares that have been
removed from the transfer restrictions pursuant to Section 1.5 of the Lock-Up
Agreement, the number of Warrant Shares removed from the transfer restrictions
pursuant to such Section 1.5 will automatically be increased to the higher
number of Warrant Shares specified in such notice. (c) Upon execution of this
Agreement, the Company shall provide to each Purchaser, in exchange for such
Purchaser's existing Warrants, new Warrants of like tenor (in the form of
Exhibit B annexed), containing the changes and additions referred to in this
paragraph.* 3. The Lock-Up Agreement is hereby amended as follows: (a) Section
1.1 (Restriction on Dispositions) is hereby amended by adding, after the words
"except as provided in Section 1.2", the following: "or Section 1.5". (b)
Section 1.2 (Permitted Dispositions) is hereby amended by changing the reference
to "$70.00" to read "$55.00". (c) Section 1.3 (Term) is hereby amended by
deleting clause (a) thereof and replacing said clause with the following: "(a)
the Final Monthly Anniversary Date or". (d) Section 1.4 (Option to Terminate) is
hereby amended by adding a new subsection (g) thereto, as follows:
"(g) The Company shall fail to comply with
its obligations under (i) Section 5.3 of the Purchase
Agreement; or (ii) Section 1.5 of this Agreement."
(a) A new Section 1.5 is hereby added to the Lock-Up
Agreement, as follows: "1.5 Phased Termination of
Restrictions. The restrictions on Dispositions
set forth in this Agreement shall terminate on each
Monthly Anniversary Date with respect to that number
of Common Shares (and a corresponding proportionate
number of Warrant Shares based on the total number of
Warrant Shares issued and issuable) covered by the
payment and/or stock issuance obligations of Section
5.3 of the Purchase Agreement at such Monthly
Anniversary Date. The Company agrees, within three
business days of submission of stock certificates
evidencing such shares, to deliver to the Purchaser
submitting such shares, certificates for shares of
Common Stock free of the Stock Legend. Additionally,
restrictions on Dispositions shall terminate
automatically for the number of Warrant Shares
specified in any notice delivered pursuant to Section
3(b) of the Amendment Agreement (dated as of June 30,
1998 between the parties thereto) which exceed the
number of Warrant Shares otherwise released from such
restrictions under this Section 1.5."
(a) The Company agrees to file, and to cause to become effective by no later
than the Initial Monthly Anniversary Date an amendment to its Form S-3
Registration Statement, including in such Registration Statement, in addition to
the Registrable Securities already covered therein, (i) the shares of Common
Stock issuable pursuant to Section 5.3 of the Purchase Agreement as the same has
been amended hereby, and (ii) other amendments to reflect the changes set forth
in this Agreement. (b) In addition, the Company shall promptly file, and shall
cause to become effective by no later than September 3, 1998, a Registration
Statement on Form S-3 or a post-effective amendment to the Registration
Statement on Form S-3 covering the shares issuable pursuant to the Additional
Warrants (defined below) that may be issued pursuant to Section 6 below. All of
the obligations of the Company set forth in the Registration Agreement shall
apply, mutatis mutandis, to its obligation to register such Additional Warrant
Shares (defined below), and the Registration Agreement is hereby deemed amended
in all respects to include such Additional Warrant Shares as Registrable
Securities thereunder. (c) Xxxxxxx Associates, L.P. and Westgate International,
L.P. (collectively, "E/W") on the one hand and Xxxxx International, Shepherd
Investments International and Staro Partners (collectively, "S/S/S") on the
other hand, severally and not jointly, agree to comply with the selling
limitations set forth in Section 6(b) and the Company agrees to issue to each of
E/W and S/S/S, within five (5) business days of the Selling Limitations
Termination Date (as hereinafter defined), additional warrants (in the form of
Exhibit C annexed) to purchase shares of Common Stock of the Company (such
additional warrants being referred to as the "Additional Warrants" and such
issuable shares of Common Stock being referred to as the "Additional Warrant
Shares"), having the following terms: The Exercise Price (subject to adjustment
between the date hereof and the date of issuance of such Additional Warrants in
a manner consistent with the provisions for adjustments of the Exercise Price
set forth in the form of Additional Warrants) shall be $35 per Additional
Warrant Share. The number of Additional Warrant Shares (subject to adjustment
between the date hereof and the date of issuance of the Additional Warrants in a
manner consistent with the adjustment of the Exercise Price during such period)
shall equal one Additional Warrant Share for every two Warrant Shares covered by
either an unexercised Warrant, a Warrant that has been redeemed or a Warrant
that has been exercised after a notice of redemption of Warrants has been
delivered pursuant to Section 3(b) above. The Termination Date of the Additional
Warrants shall be December 25, 2001. The form of the Additional Warrant shall
conform to the form of Warrants currently held by Purchasers, mutatis mutandis,
and shall refer to the fact that the Additional Warrant Shares are entitled to
the benefit of registration rights as set forth herein and in the Registration
Rights Agreement. (d) E/W and S/S/S severally agree to restrict its respective
sales of Common Shares and shares of Common Stock (collectively, "Restricted
Shares"), on any trading day prior to the earlier of (i) the Final Monthly
Anniversary Date or (ii) the occurrence of any of the events set forth in
Section 1.4 of the Lock-Up Agreement giving E/W or S/S/S the right to terminate
such Lock-Up Agreement (the "Selling Limitations Termination Date"), to a number
equal to (as applied separately to each of E/W and S/S/S) the greater of (the
"Selling Limitations"): (i) 10% of that trading day's trading volume (as
reported by Bloomberg, L.P.), (ii) 10% of the average of the three previous
trading days' trading volume (as reported by Bloomberg, L.P.) or (iii) 10,000
shares. For the avoidance of doubt, the failure of S/S/S to satisfy the Selling
Limitations will not impair E/W's rights under Section 6, and vice versa. 2. The
provisions of Section 4.4 and Section 4.14 of the Purchase Agreement are hereby
amended so that such sections continue to apply to the Company through the Final
Monthly Anniversary Date. 3. Effective upon the execution date of this Agreement
and until the Final Monthly Anniversary Date, the Company shall have the right,
but not the obligation, to purchase for cash all or (on a pro-rata basis among
the Purchasers) a part of the Common Shares held by the Purchasers at the
original $50 price thereof, and to terminate any contractual rights, including,
but not limited to, all the rights under this Agreement and under the Purchase
Agreement, that the Purchasers have with respect to the Common Shares
repurchased by the Company. The Company must deliver irrevocable written notice
of its intention to so purchase Common Shares (which notice shall specify the
time and place of such purchase, the number of Common Shares being purchased,
and the pro-rata allocation of the purchase among the Purchasers and shall
certify that the Company has set aside the full cash purchase price for such
Common Shares) 15 business days before, and must consummate its purchase of
those Common Shares no earlier than 12 business days and no later than 2
business days before, the commencement of a particular Monthly Pricing Period if
the Company wishes to purchase Common Shares subject to that Monthly Pricing
Period. The Purchaser must deliver its certificates for Common Shares
repurchased hereunder against delivery of the cash purchase price for such
Common Shares within 3 business days of receiving notice of such repurchase. To
the extent a portion of the Common Shares have been disposed of by the
Purchasers, then Company's rights will apply only to the Common Shares
remaining. Without limiting the other provisions of this Section 8, if the
Company completes the purchase of all but not less than all of the Common Shares
held by the Purchasers at the original $50 price thereof within 60 calendar days
from the date of this Agreement, then the Company will have no further
obligation to issue Additional Warrants, and the Company's obligations with
respect to the Warrants will be unaffected by such repurchase. 4. Section 4.10
of the Purchase Agreement is amended by deleting the second sentence thereof
only, and replacing it with the following sentence:
"Each Purchaser agrees not to, directly or
indirectly, enter into any short sales with respect
to the Common Shares prior to the Selling Limitations
Termination Date, as defined in the Amendment
Agreement by and between the parties hereto dated as
of June 30, 1998."
1. Except as set forth herein, the Transaction Documents shall remain
unmodified, and in full force and effect. 2. The provisions of Article VIII
(Governing Law; Miscellaneous) of the Purchase Agreement shall apply to this
Agreement, mutatis mutandis, as if set forth herein in full.
3.
1. IN WITNESS WHEREOF, the undersigned Purchasers and the Company have caused
this Agreement to be duly executed as of the date first above written.
2.
MIRAVANT MEDICAL TECHNOLOGIES:
By:/S/
---------------------------------
Name:
Title:
PURCHASERS:
XXXXX INTERNATIONAL
By:/S/
---------------------------------
Name:
Managing Member, Staro Asset Management, LLC
Investment Manager, Xxxxx International
DATE:
[signatures continued next page]
SHEPHERD INVESTMENTS INTERNATIONAL
By:/S/
---------------------------------
Name:
Managing Member, Staro Asset Management, LLC
Investment Manager, Shepherd Investments International, Ltd.
DATE:
STARO PARTNERS
By:/S/
---------------------------------
Name:
Managing Member, Staro Asset Management, LLC
Investment Manager, Staro Partners
DATE:
XXXXXXX ASSOCIATES, L.P.
By:/S/
---------------------------------
Xxxx X. Xxxxxx
General Partner
WESTGATE INTERNATIONAL, L.P.
By:/S/
---------------------------------
Xxxx X. Xxxxxx, President
Martley International, Inc.
Attorney-in-Fact, Westgate International, L.P.
EXHIBIT A
Notice of Common Stock Issuance
For the Monthly Anniversary Date of ________, the Monthly Anniversary Price, as
defined in Section 5.3 of the Amended Purchase Agreement, is __________.
Therefore, C - A ("Deficit"), as defined in such Agreement, equals __________.
For each applicable Common Share, Miravant will pay ___________ dollars of the
Deficit in cash, and _________ dollars of the Deficit (not to exceed $25) in
shares of Common Stock.
--------
* Note that the existing Warrants are dated September 25 and the other
Transaction Documents are dated September 22. The existing Warrants seem to
refer to the Registration Rights Agreement as being dated September 25; in fact
the Registration Rights Agreement was dated September 22. This should be
corrected in the new Warrants.
