REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of August 27, 2002 (the
"Agreement"), is made by and between MIRAVANT MEDICAL TECHNOLOGIES, a Delaware
corporation, 000 Xxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Company"),
and the undersigned investors (the "Current Investors").
W I T N E S S E T H :
WHEREAS, in connection with the Securities Purchase Agreement dated August
27, 2002 among the Current Investors 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 Current Investors up to Five
Million (5,000,000) shares of common stock of the Company par value $.001 per
share (the "Common Stock"), together with Warrants to purchase up to an
additional Two Million Five Hundred Thousand (2,500,000) shares of common stock.
The shares of Common Stock and the shares of Common Stock into which the
Warrants are exercisable are collectively referred to herein as the "Registrable
Shares." In connection with the sale of the Registrable Shares to the Current
Investors (the "Offering"), each of such investors will be entitled to
registration rights as set forth in this Agreement.
WHEREAS, to induce the Current Investors 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 Current
Investors 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) "Investors" means the Current Investors and any transferee or assignee
of the Current Investors 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
Current Investors 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), or (ii) the date
on which the Registrable Securities (in the opinion of Investors'
counsel) may be immediately sold without registration and free of
restrictions on transfer.
(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
following the closing of the purchase of the Common Stock (the
"Closing Date"). 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 and/or
upon exercise of the Warrants (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 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 Current Investors and their 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
or one hundred fifty (150) days after the Closing Date (the "Required
Effective Date"). The Company will use commercially reasonable efforts
to cause the Registration Statement to be filed with the SEC as soon
as practicable, but not later than one hundred fifty (150) days from
the Closing Date (the "Registration Deadline"). 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 Registration 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. 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 Current Investors 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 within the one hundred fifty (150) day period beginning
from the Closing Date.
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 Investor 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 Investor may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Investor.
(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
Investors 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 Investors who hold a majority in interest of the
Registrable Securities being offered in an offering select
underwriters for such 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 such Investors to represent
their interests in the underwritten offering. No Investor shall be
obligated to participate in any such underwriting.
(f) The Company shall notify each Investor 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 Investor as such
Investor 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 Investor 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
Investors who hold 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 Investor 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 Investors; 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
Investors.
(j) The Company shall make available for inspection by any Investor 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 Investor 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 an Investor) 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). Each Investor 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 Investor'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 an Investor 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 an Investor is sought in or
by a court or governmental body of competent jurisdiction or through
other means, give prompt notice to such Investor and allow such
Investor, 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 Investors who hold 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 Investors 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 Investors 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 Investor of the Registrable
Securities pursuant to the Registration Statement.
(o) At the request of any Investor, 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 Investor 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 Investors. In connection with the registration of the
Registrable Securities, the Investors 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 each
Investor that such Investor 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 Investor shall be included without
material alteration in the Registration Statement and shall not be
modified without such Investor's written consent. At least ten (10)
business days prior to the first anticipated filing date of the
Registration Statement, the Company shall notify each Investor of the
information the Company requires from each such Investor (the
"Requested Information") if such Investor elects to have any of such
Investor'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 Investor (a
"Non-Responsive Investor"), then the Company may file the Registration
Statement without including Registrable Securities of such
Non-Responsive Investor.
(b) Each Investor, by such Investor'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 Investor has
notified the Company in writing of such Investor's election to exclude
all of such Investor's Registrable Securities from the Registration
Statement.
(c) In the event Investors holding a majority in interest of the
Registrable Securities being registered determine to engage the
services of an underwriter, each Investor agrees to enter into and
perform such Investor'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 Investor has notified the
Company in writing of such Investor's election to exclude all of such
Investor's Registrable Securities from the applicable Registration
Statement. No Investor shall be obligated to participate in any such
underwriting.
(d) Each Investor 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 Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities until such Investor'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 Investor
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 Investor's possession, of the
prospectus covering such Registrable Securities current at the time of
receipt of such notice.
(e) No Investor may participate in any underwritten registration hereunder
unless such Investor (i) agrees to sell such Investor's Registrable
Securities on the basis provided in any underwriting arrangements
approved by the Investors 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 Current Investors 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 Investor who holds such Registrable Securities, the
directors, if any, of such Investor, the officers, if any, of such
Investor, each person, if any, who controls any Investor within the
meaning of the Securities Act or the Exchange Act, any underwriter (as
defined in the Securities Act) for the Investors, 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 Investors 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 Investors pursuant to Section 9.
(b) In connection with any Registration Statement in which an Investor is
participating, each such Investor, 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 Investor expressly for
use in connection with such Registration Statement, and such Investor
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 Investor, which consent shall not be unreasonably
withheld; provided further, however, that the Investor shall be liable
under this Section 6(b) for only that amount of a Claim as does not
exceed the net proceeds to such Investor 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 Investors
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 Investors; such legal counsel shall be
selected by the Investors 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 Investor on the other, in such
proportion as is appropriate to reflect the relative fault of the Company and of
such Investor 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 Investor 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 Investor.
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 Investors 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 Investors 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 Investor or underwriter shall
be required to contribute any amount in excess of the amount by which (i) in the
case of any Investor, the net proceeds received by such Investor 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 Investor 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 Investors 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 Investors 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 each Investor so long as such Investor 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 Investors 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 Investors to transferees or assignees of all or
any portion of such securities or Warrants exercisable into Registrable
Securities only if (i) the Investor 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 each Investor. Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon each Investor
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 Gorumna, Ltd. (BVI):
--------------------------
c/o X.X. Xxxxxxxxx
Xxxxxxxxxxxxx 00/XX Xxx 0000
XX-0000, Xxxxxx Xxxxxxxxxxx
Attention: X.X. Xxxxxxxxx
Facsimile: 011-41-1-215-1212
with a copy to:
---------------
Xxxxxx X. Xxxxxx, Esq.
00 Xxxxxxxx Xxxxxx, Xxxxx 0
Xxx, XX 00000
Facsimile: (000) 000-0000
If to Pleyel Holdings, Limited (BVI):
-------------------------------------
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
If to Big Cat Capital, Limited (BVI):
--------------------------------------
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
If to Acacias Financial, Limited (BVI):
----------------------------------------
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
If to Alert Investments, Limited (BVI):
c/o X.X. Xxxxxxxxx
Xxxxxxxxxxxxx 00/XX Xxx 0000
XX-0000, Xxxxxx Xxxxxxxxxxx
Facsimile: 011-41-1-215-1212
with a copy to:
---------------
Xxxxxx X. Xxxxxx, Esq.
00 Xxxxxxxx Xxxxxx, Xxxxx 0
Xxx, XX 00000
Facsimile: (000) 000-0000
If to Camelford Holdings, Limited (BVI):
----------------------------------------
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
If to Danube Financial, Limited (BVI):
--------------------------------------
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
If to Delice Financial, Limited (BVI):
---------------------------------------
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
If to Iris Financial, Limited (BVI):
-------------------------------------
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
If to Pearl Waves, Inc. (BVI):
c/o X.X. Xxxxxxxxx
Xxxxxxxxxxxxx 00/XX Xxx 0000
XX-0000, Xxxxxx Xxxxxxxxxxx
Facsimile: 011-41-1-215-1212
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 each Investor irrevocably
waives the defense of an inconvenient forum to the maintenance of such
suit or proceeding in such forum. The Company and each Investor
further agrees that service of process upon the Company or such
Investor, as applicable, in accordance with Section 11(b) shall be
deemed in every respect effective service of process upon the Company
or such Investor in any suit or proceeding arising hereunder. Nothing
herein contained shall affect Investor'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 a
Investor shall limit any remedy which would otherwise be available to
such Investor at law or in equity. Nothing in this Agreement shall
limit any rights a Investor 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 Investor.
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 Investor 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
Investors pursuant to this Agreement shall be made by Investors
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
CURRENT INVESTORS:
GORUMNA, LTD. (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
PLEYEL HOLDINGS, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
BIG CAT CAPITAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
ACACIAS FINANCIAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
CURRENT INVESTORS (continued):
ALERT INVESTMENTS, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
CAMELFORD HOLDINGS, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
DANUBE FINANCIAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
DELICE FINANCIAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
IRIS FINANCIAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
PEARL WAVES, INC. (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
