WARRANT AGREEMENT
WARRANT AGREEMENT (this "Agreement"), dated as of o, 1999, between MIRAVANT
MEDICAL TECHNOLOGIES, a Delaware corporation (the "Company"), and PHARMACIA &
UPJOHN, INC., a Delaware corporation (the "Initial Holder").
W I T N E S S E T H :
WHEREAS, Sections 2.02 and 6.02(b) of the Credit Agreement, of even date
herewith, between the Company and o (the "Credit Agreement") provide that in
connection with the making of each Borrowing Request contemplated thereby, the
Company shall deliver to the Initial Holder a Warrant Certificate representing a
number of Warrants equal to the Warrant Number and having the terms herein set
forth;
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
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 Exhibits shall be deemed references to the Preamble and Recitals,
Articles and Sections of, and Exhibits 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:
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Average Price" means, with respect to the Exercise Price for any Warrant,
the average of the Closing Prices of the Common Stock for the 10 Trading Days
immediately preceding the date of the dispatch to the Initial Holder of the
Borrowing Request that accompanies the Warrant Certificate evidencing such
Warrant.
"Board of Directors" means the board of directors of the Company.
"Borrowing Request" has the meaning assigned to such term in the Credit
Agreement.
"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.
"Cash Amount" means, with respect to any Warrant, an amount of cash equal
to the product of (i) 95% of the Closing Price of the Common Stock as of the
date of exercise of such Warrant multiplied by (ii) the Shares Amount in effect
on such date.
"Close of Business" means, for any day, 5:00 p.m., New York City time, on
such date.
"Closing Price" means the last reported sale price regular way on the day
in question or, in case no such sale takes place on such day, the reported
closing bid price regular way of the Common Stock, in each case on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading, or, if not listed or admitted to trading on any national securities
exchange, the closing bid price of the Common Stock on the Nasdaq National
Market, or if not listed or admitted to trading on any national securities
exchange and not quoted on the Nasdaq National Market, the closing bid price of
the Common Stock in the over-the-counter market on the day in question as
reported by the National Quotation Bureau Incorporated, or a similarly generally
accepted reporting service, or, if not so available in such manner, as furnished
by any New York Stock Exchange, Inc. member firm selected from time to time by
the Board of Directors for such purpose. In the case of a closing price of
Common Stock on the Nasdaq National Market System, such price shall mean the
closing price reported in the New York City edition of The Wall Street Journal
or, if not so reported, another authoritative source.
"Commission" means the Securities and Exchange Commission (or any successor
Governmental Authority).
"Common Stock" means the common stock, par value $.01 per share, of the
Company and any other stock of the Company into which such common stock may be
converted or reclassified (other than stock of the Company into which unissued
Common Stock has been reclassified) or that may be issued in respect of, in
exchange for, or in substitution of, such common stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations,
recapitalizations or other like events.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Price" means, with respect to any Warrant, the price equal to
140% of the Average Price.
"Expiration Date" means, with respect to each Warrant, the fifth
anniversary of the date on which a Warrant Certificate evidencing such Warrant
is first received by the Initial Holder, provided that if such anniversary is
not a Business Day, the next Business Day thereafter.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Holder" means any holder from time to time of Warrant Certificates.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether Federal,
state, county, city, municipal or otherwise, including any instrumentality,
division, agency, body or department thereof).
"Quarterly Loan" has the meaning assigned to such term in the Credit
Agreement.
"SEC Reports" means the annual and quarterly reports and the information,
documents, and other reports that the Company is required to file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares Amount" means, with respect to any Warrant, one share of Common
Stock, subject to all adjustments made pursuant to Article V hereof on or prior
to the date of exercise of such Warrant.
"Trading Day" means a day on which the principal national securities
exchange on which the shares of Common Stock are listed or admitted to trading
is open for the transaction of business or, if the shares of Common Stock are
not listed or admitted to trading on any national securities exchange, a day on
which the Nasdaq National Market is open for the transaction of business.
"Warrant" means a warrant to purchase Common Stock at a price per share of
Common Stock equal to the Exercise Price for such Warrant.
"Warrant Number" has the meaning assigned to such term in the Credit
Agreement.
Section I.3. Tie Sheet. The following terms are defined in the Sections set
forth below:
Term Section
---- -------
Agreement Preamble
Applicable Price 5.06
Call Notice 3.07(b)
Called Warrants 3.07(a)
Common Stock Fundamental Change 5.06
Company Preamble
Credit Agreement Recitals
Current Event 5.01(g)
Expiration Time 5.01(f)
Indemnitee 9.02
Initial Holder Preamble
Non-Stock Fundamental Change 5.06
Other Event 5.01(g)
Purchased Shares 5.01(f)
Purchaser Stock Price 5.06
Reference Date 5.01(d)
Registrar 2.04(a)
Transfer Agent 7.01
Trigger Date 3.07(a)
Warrant Certificates 2.02
Warrant Register 2.04(a)
ARTICLE II
Issuance and Grant of Warrants;
Form, Execution, Delivery and
Registration of Warrant Certificates
Section II.1. Issuance and Grant of Warrants. In connection with the
delivery by the Company of each Borrowing Request pursuant to Section 2.02 of
the Credit Agreement, the Company will issue and grant to the Initial Holder a
number of Warrants equal to the Warrant Number. In the event that the Company
has complied with its obligations pursuant to the Credit Agreement and o fails
to make the Quarterly Loan contemplated by Section 2.02 of the Credit Agreement,
the Warrants evidenced by the Warrant Certificate that accompanies the related
Borrowing Request shall be null and void; provided, however, that if o fails to
make such Quarterly Loan as a result of the Company's cancellation or revocation
of such Borrowing Request or as a result of the Company's failure to comply with
its obligations under the Credit Agreement, such Warrants and such Warrant
Certificate shall not be rendered null, void or otherwise invalid.
Section II.2. Form of Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") shall be in registered form only, in the
form set forth in Exhibit A hereto and may represent any whole number of
Warrants. Each Warrant Certificate shall be dated the date of the Borrowing
Request accompanying such Warrant Certificate and may have imprinted or
otherwise reproduced thereon such letters, numbers or other marks of
identification as may, consistent with the provisions of this Agreement, be
determined by the officers executing any such Warrant Certificate.
Section II.3. Execution and Delivery of Warrant Certificates. Each Warrant
Certificate shall be executed on behalf of the Company by (a) its chairman,
chief executive officer, president, or chief operating officer, and (b) its
chief financial officer, in any case either manually or by facsimile signature
printed thereon.
Section II.4. Registration; Registration of Transfers and Exchanges. (a)
The Company will keep a register or registers in which the Company shall
maintain a master list of names and addresses of the Holders (the "Warrant
Register") and shall provide for the registration of, and registration of
transfer and exchange of, Warrant Certificates as provided in this Article. Each
person designated by the Company from time to time as a person having custody of
the Warrant Register and register the transfer and exchange of the Warrant
Certificates is hereinafter called, individually and collectively, the
"Registrar". The Company hereby appoints the Chief Financial Officer of the
Company as Registrar. Upon written notice to the Initial Holder and any acting
Registrar, the Company may appoint a successor Registrar for such purposes.
(b) Upon due presentation for registration of transfer of any Warrant
Certificate to the Registrar, the Company shall execute and deliver in the name
of the transferee or transferees a new Warrant Certificate or Warrant
Certificates in authorized denominations for a like aggregate number of Warrants
bearing numbers or other distinguishing symbols not contemporaneously
outstanding.
(c) Any Warrant Certificate or Warrant Certificates may be exchanged for a
Warrant Certificate or Warrant Certificates in other authorized denominations,
representing in the aggregate a like number of Warrants. A Warrant Certificate
or Warrant Certificates to be so exchanged shall be surrendered to the
Registrar, and the Company shall execute and deliver in exchange therefor the
Warrant Certificate or Warrant Certificates bearing numbers or other
distinguishing symbols not contemporaneously outstanding.
(d) The Company and the Registrar may deem and treat the person in whose
name any Warrant Certificate shall be registered in the Warrant Register as the
absolute owner of such Warrant Certificate for the purpose of any exercise
thereof or any distribution to the Holder thereof and for all other purposes.
(e) All Warrants presented for registration of transfer or exchange shall
(if so required by the Company or the Registrar) be duly endorsed by the
registered Holder or Holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney and shall be accompanied
by a written instrument or instruments of transfer or exchange.
(f) No service charge shall be made for any transfer or exchange of Warrant
Certificates, but the Company may require payment from the Holder(s) of such
Warrant Certificates of a sum sufficient to cover any stamp or other
governmental charge or tax that may be imposed in connection with any such
transfer or exchange.
Section II.5. Lost, Stolen, Destroyed, Defaced or Mutilated
Warrant Certificates. Upon receipt by the Registrar of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, defacement, or
mutilation of any Warrant Certificate and, in the case of mutilation or
defacement, upon surrender thereof to the Registrar for cancellation, then the
Company shall execute and deliver, in exchange for or in lieu of the lost,
stolen, destroyed, defaced or mutilated Warrant Certificate, a new Warrant
Certificate having the same tenor and for a like number of Warrants, bearing a
number or other distinguishing symbol not contemporaneously outstanding. Upon
the issuance of any new Warrant Certificate pursuant to this Section 2.05, the
Company may require the payment from the Holder of such Warrant Certificate of a
sum sufficient to cover any tax, stamp tax or other governmental charge that may
be imposed in relation thereto and may require (if the Holder of such Warrant
Certificate is the Initial Holder or any of its Affiliates) a written instrument
executed and delivered by the Initial Holder or The Pharmacia & Upjohn Company,
a Delaware corporation, undertaking to indemnify and defend the Company against
all claims in respect of the lost, stolen, destroyed, defaced or mutilated
Warrant Certificate or (if the Holder is not the Initial Holder or any of its
Affiliates) a lost instrument bond providing customary coverage. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute an
additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of (but shall be subject to all
the limitations of rights set forth in) this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder.
ARTICLE III
Exercise of Warrants
Section III.1. Duration of Exercise Rights. Each Warrant shall
be exercisable as provided in this Article III from time to time on any Business
Day prior to the Close of Business on the Expiration Date for such Warrant.
Section III.2. Right to Purchase. When exercised in accordance
with Section 3.03 or 3.07, each Warrant shall entitle the Holder to purchase,
and the Company shall be required to issue and deliver, a number of shares of
Common Stock equal to the Shares Amount in effect on the day such Warrant is
exercised in accordance with Section 3.03 or on the Trigger Date, in the case of
an exercise pursuant to Section 3.07, at the Exercise Price for such Warrant;
provided, however, that in the case of an exercise pursuant to Section 3.03, the
Company may, at its sole election, pay to the Holder of each Warrant so
exercised in respect of any one or more of such Warrants cash in an amount equal
to the Cash Amount in lieu of delivering the shares of Common Stock.
Section III.3. Exercise Procedures. In order to exercise a
Warrant, the Holder must surrender the Warrant Certificate evidencing such
Warrant to the Registrar, with the form of election on the reverse of or
attached to the Warrant Certificate duly executed, together with payment of the
Exercise Price. Any such payment of the Exercise Price shall be by certified or
official bank check or wire transfer to the Company of same day funds.
Section III.4. Delivery of Shares. In the event the Company
elects to deliver the Shares Amount as provided in Section 3.02, then upon
surrender of the Warrant Certificate in accordance with Section 3.03 the Company
shall promptly issue or cause to be issued to or upon the written order of the
Holder of such Warrant Certificate, a certificate or certificates evidencing the
share or shares of Common Stock to which such Holder is entitled, in fully
registered form, registered in such name or names as may be directed by such
Holder pursuant to the form of election on the reverse of or attached to the
Warrant Certificate. Such certificate or certificates evidencing such share or
shares shall be deemed to have been issued and any persons who are designated to
be named therein shall be deemed to have become the holder of record of such
share or shares as of the Close of Business on the date on which the Exercise
Price for the related Warrant or Warrants shall have been paid.
Section III.5. Payment of Cash. If the Company elects to
deliver the Cash Amount as provided in Section 3.02, then upon surrender of the
Warrant Certificate in accordance with Section 3.03, the Company shall make
prompt payment of the Cash Amount in same day funds to the account specified on
the form of election on the reverse of or attached to the Warrant Certificate.
Section III.6. Certificate for Unexercised Warrants. If fewer
than all the Warrants represented by a Warrant Certificate are exercised, such
Warrant Certificate shall be surrendered to the Registrar with instructions for
the issuance of a new Warrant Certificate and the Company shall promptly execute
and deliver a new Warrant Certificate for the Warrants that were not exercised
bearing numbers or other distinguishing symbols not contemporaneously
outstanding.
Section III.7. Mandatory Exercise. (a) If and only if the
average of the Closing Prices of the Common Stock for the 30 Trading Days
immediately preceding a particular date (the "Trigger Date") exceeds the
Exercise Price set forth in the Warrant Certificate representing one or more
Warrants, the Company shall be entitled, at its option exercised within 30 days
following the Trigger Date, to cause the Holder of such Warrant Certificate to
exercise all, but not fewer than all, of the related Warrants (the "Called
Warrants") as provided herein.
(b) If the Company elects to cause the Holder to exercise the
Called Warrants, it shall furnish to the Holder, within 30 calendar days
following the Trigger Date, a written notice thereof, (the "Call Notice"),
specifying the identifying number of the Warrant Certificate evidencing the
Called Warrants and the Trigger Date.
(c) Not later than three Business Days following the later of
(i) the date of the Call Notice, and (ii) the expiration or termination of any
waiting period (and any extension thereof) applicable to the acquisition by the
Holder thereof of the shares of Common Stock issuable upon exercise of the
Called Warrants under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended and the receipt of all governmental and contractual permits, consents
and approvals necessary in connection with such acquisition, the Company shall
deliver to the Holder of the Called Warrants a certificate evidencing a number
of shares of Common Stock equal to the product of (x) Shares Amount in effect on
the Trigger Date, multiplied by (y) the number of Called Warrants.
(d) Not later than three Business Days following the receipt
of the certificate referred to in Section 3.07(c), the Holder of the Called
Warrants shall deliver to the Company the certificate representing the Called
Warrants and a check for the product of (i) the Exercise Price, multiplied by
(ii) the number of Called Warrants.
ARTICLE IV
Compliance With the Securities Act and
Restrictions on Transfer of Shares
Section IV.1. Acknowledgment. The Initial Holder hereby
acknowledges that the Warrants and the shares of Common Stock that may be
received by the Initial Holder upon exercise of any Warrant are and will be
subject to certain restrictions on transfers under the Securities Act and the
regulations promulgated thereunder.
Section IV.2. Representation. The Initial Holder hereby represents to the
Company that it is acquiring the Warrants for its own account for investment and
not with a view to the resale or distribution of any interest therein.
Section IV.3. Restrictions on Transfer of Shares. Prior to the
thirtieth calendar day following the issuance of shares of Common Stock upon the
exercise of Warrants, the Initial Holder shall not, and shall cause its
Affiliates not to, sell, assign, transfer or otherwise dispose of such shares,
except that the Initial Holder may transfer any such shares to any of its wholly
owned subsidiaries. The provisions of this Section 4.03 shall not prohibit or
restrict the sale, assignment, transfer or disposition at any time of any shares
of Common Stock acquired pursuant to Section 3.07.
ARTICLE V
Adjustments
Section V.1. Adjustment upon Certain Transactions. The Shares
Amount (and, by virtue thereof, the Cash Amount) shall be subject to adjustment
from time to time on and subsequent to the date of this Agreement as follows:
(a) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in Common Stock or shall pay or
make a dividend or other distribution on any other class or series of stock of
the Company which dividend or distribution includes Common Stock, the Shares
Amount in effect at the opening of business on the date following the date fixed
for the determination of stockholders entitled to receive such dividend or other
distribution shall be increased by multiplying such Shares Amount by a fraction
of which the denominator shall be the number of shares of Common Stock
outstanding at the Close of Business on the date fixed for such determination
and the numerator shall be the sum of such number of shares plus the total
number of shares constituting such dividend or other distribution, such increase
to become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
Section 5.01(a), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. The Company shall
not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.
(b) In case the Company shall pay or make a dividend or other
distribution on its Common Stock consisting exclusively of, or shall otherwise
issue to all holders of its Common Stock, rights or warrants entitling the
holders thereof to subscribe for or purchase shares of Common Stock at a price
per share less than the current market price per share (determined as provided
in Section 5.01(g)) of the Common Stock on the date fixed for the determination
of stockholders entitled to receive such rights or warrants, the Shares Amount
in effect at the opening of business on the day following the date fixed for
such determination shall be increased by multiplying the Shares Amount by a
fraction of which the denominator shall be the number of shares of Common Stock
outstanding at the Close of Business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the offering
price of the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price and the numerator shall
be the number of shares of Common Stock outstanding at the Close of Business on
the date fixed for such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such increase to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this Section 5.01(b), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company. The Company shall not issue any rights or warrants
in respect of shares of Common Stock held in the treasury of the Company. In
case any rights or warrants referred to in this Section 5.01(b) in respect of
which an adjustment shall have been made shall expire unexercised within 60 days
after the same shall have been distributed or issued by the Company, the Shares
Amount shall be readjusted at the time of such expiration to the Shares Amount
that would have been in effect if no adjustment had been made on account of the
distribution or issuance of such expired rights or warrants.
(c) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Shares Amount in
effect at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately increased, and
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Shares Amount in effect at
the opening of business on the day following the day upon which such combination
becomes effective shall be proportionately decreased, such reduction or
increase, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective. No reduction in the Shares Amount may occur
except pursuant to this Section 5.01(c) or the last sentence of Section 5.01(b).
(d) Subject to the last two sentences of this Section 5.01(d),
in case the Company shall, by dividend or otherwise, distribute to all holders
of its Common Stock evidences of its indebtedness, shares of any class or series
of stock, cash or assets (including securities, but excluding any rights or
warrants referred to in Section 5.01(b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in Section
5.01(a)), the Shares Amount shall be increased so that the same shall equal the
number determined by multiplying the Shares Amount in effect immediately prior
to the effectiveness of the Shares Amount increase contemplated by this Section
5.01(d) by a fraction of which the numerator shall be the current market price
per share (determined as provided in Section 5.01(g)) of the Common Stock on the
date fixed for the payment of such distribution (the "Reference Date") plus the
fair market value (as determined in good faith by the Board of Directors and
described in a resolution of the Board of Directors), on the Reference Date of
the portion of the evidences of indebtedness, shares of stock, cash and assets
so distributed applicable to one share of Common Stock and the denominator shall
be such current market price per share of the Common Stock, such increase to
become effective immediately prior to the opening of business on the day
following the Reference Date. If the Board of Directors determines the fair
market value of any distribution for purposes of this Section 5.01(d) by
reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in such
market over the same period used in computing the current market price per share
of Common Stock pursuant to Section 5.01(g). For purposes of this Section
5.01(d), any dividend or distribution that includes shares of Common Stock or
rights or warrants to subscribe for or purchase shares of Common Stock shall be
deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, cash, assets or shares of stock other than such shares of Common
Stock or such rights or warrants (making any Shares Amount increase required by
this Section 5.01(d)) immediately followed by (2) a dividend or distribution of
such shares of Common Stock or such rights or warrants (making any further
Shares Amount increase required by Section 5.01(a) or (b) except (A) the
Reference Date of such dividend or distribution as defined in this Section
5.01(d) shall be substituted as "the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution", "the date
fixed for the determination of stockholders entitled to receive such rights or
warrants" and "the date fixed for such determination" within the meaning of
Section 5.01(a) or (b) and (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed "outstanding at the Close of
Business on the date fixed for such determination" within the meaning of Section
5.01(a) or (b)).
(e) In case the Company shall pay or make a dividend or other
distribution on the Common Stock exclusively in cash the Shares Amount shall be
increased so that the same shall equal the number determined by multiplying the
Shares Amount in effect immediately prior to the effectiveness of the Shares
Amount increase contemplated by this Section 5.01(e) by a fraction of which the
numerator shall be the current market price per share (determined as provided in
Section 5.01(g)) of the Common Stock on the date fixed for the payment of such
distribution plus the amount of cash so distributed applicable to one share of
Common Stock and the denominator shall be such current market price per share of
Common Stock, such increase to become effective immediately prior to the opening
of business on the day following the date fixed for the payment of such
distribution.
(f) In case a tender or exchange offer made by the Company or
by any subsidiary of the Company for all or any portion of the Common Stock
shall expire and such tender or exchange offer shall involve the payment by the
Company or such subsidiary of consideration per share of Common Stock having a
fair market value (as determined in good faith by the Board of Directors and
described in a resolution of the Board of Directors) at the last time (the
"Expiration Time") shares of Common Stock may be tendered into to such tender or
exchange offer (as it shall have been amended) that exceeds the current market
price per share (determined as provided in Section 5.01(g)) of the Common Stock
on the Trading Day next succeeding the Expiration Time, the Shares Amount shall
be increased so that the same shall equal the number determined by multiplying
the Shares Amount in effect immediately prior to the effectiveness of the Shares
Amount increase contemplated by this Section 5.01(f) by a fraction of which the
denominator shall be the number of shares of Common Stock outstanding (including
any tendered or exchanged shares) at the Expiration Time multiplied by the
current market price per share (determined as provided in Section 5.01(g)) of
the Common Stock on the Trading Day next succeeding the Expiration Time and the
numerator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) at the Expiration
Time and the current market price per share (determined as provided in Section
5.01(g)) of the Common Stock on the Trading Day next succeeding the Expiration
Time, such increase to become effective immediately prior to the opening of
business on the day following the Expiration Time.
(g) For the purpose of any computation under Section 5.01(b),
(d), (e) and (f), the "current market price" per share of Common Stock on any
date in question shall be deemed to be the average of the daily Closing Prices
for the five consecutive Trading Days prior to and including the date in
question; provided, however, that (1) if the "ex" date (as hereinafter defined)
for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Shares Amount pursuant to
Section 5.01(a), (b), (c), (d), (e), (f) or (h) ("Other Event") occurs after the
fifth Trading Day prior to the day in question and prior to the "ex" date for
the issuance or distribution requiring such computation (the "Current Event"),
the Closing Price for each Trading Day prior to the "ex" date for such Other
Event shall be adjusted by multiplying such Closing Price by the reciprocal of
the fraction by which the Shares Amount is so required to be adjusted as a
result of such Other Event, (2) if the "ex" date for any Other Event occurs
after the "ex" date for the Current Event and on or prior to the date in
question, the Closing Price for each Trading Day on and after the "ex" date for
such Other Event shall be adjusted by multiplying such Closing Price by the
fraction by which the Shares Amount is so required to be adjusted as a result of
such Other Event, (3) if the "ex" date of any Other Event occurs on the "ex"
date for the Current Event, one of those events shall be deemed for purposes of
clauses (1) and (2) of this proviso to have an "ex" date occurring prior to the
"ex" date for the other event, and (4) if the "ex" date for the Current Event is
on or prior to the date in question, after taking into account any adjustment
required pursuant to clause (2) of this proviso, the Closing Price for each
Trading Day on or after such "ex" date shall be adjusted by adding thereto the
amount of any cash and the fair market value on the date in question (as
determined in good faith by the Board of Directors in a manner consistent with
any determination of such value for purposes of Section 5.01(d) or (e), and
described in a resolution of the Board of Directors) of the portion of the
rights, warrants, evidences of indebtedness, shares of stock or assets being
distributed applicable to one share of Common Stock. For the purpose of any
computation under Section 5.01(f), the current market price per share of Common
Stock on any date in question shall be deemed to be the average of the daily
Closing Prices for such date in question and the next two succeeding Trading
Days; provided, however, that if the "ex" date for any event (other than the
tender or exchange offer requiring such computation) that requires an adjustment
to the Shares Amount pursuant to Section 5.01(a), (b), (c), (d), (e), (f) or (h)
occurs after the Expiration Time for the tender or exchange offer requiring such
computation and on or prior to the second Trading Day following the date in
question, the Closing Price for each Trading Day on and after the "ex" date for
such other event shall be adjusted by multiplying such Closing Price by the
fraction by which the Shares Amount is so required to be adjusted as a result of
such other event. For purposes of this paragraph, the term "ex" date, (1) when
used with respect to any issuance or distribution, means the first date on which
the Common Stock trades regular way on the relevant exchange or in the relevant
market from which the Closing Price was obtained without the right to receive
such issuance or distribution, (2) when used with respect to any subdivision or
combination of shares of Common Stock, means the first date on which the Common
Stock trades regular way on such exchange or in such market after the time at
which such subdivision or combination becomes effective, and (3) when used with
respect to any tender or exchange offer, means the first date on which the
Common Stock trades regular way on such exchange or in such market after the
Expiration Time of such offer.
(h) The Company may make such increase in the Shares Amount,
in addition to those required by Section 5.01(a), (b), (c), (d), (e) and (f) as
it considers to be advisable to avoid or diminish an income tax to holders of
Common Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes. The Company from time to time may increase the
Shares Amount by any amount for any period of time if the period is at least
twenty days, the increase is irrevocable during the period, and the Board of
Directors shall have made a determination that such increase would be in the
best interest of the Company. Whenever the Shares Amount is increased pursuant
to the preceding sentence, the Company shall mail to Holders a notice of the
increase at least fifteen days prior to the date the increased Shares Amount
takes effect, and such notice shall state the increased Shares Amount and the
period it will be in effect.
(i) No adjustment in the Shares Amount shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Shares Amount; provided, however, that any adjustments which by reason of
this Section 5.01(i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
(j) Whenever the Shares Amount is adjusted as herein provided,
the Company shall compute the adjusted Shares Amount and shall prepare a
certificate signed by the Chief Financial Officer of the Company setting forth
the adjusted Shares Amount and showing in reasonable detail the facts upon which
such adjustment is based, and a copy of such certificate shall forthwith be
delivered to each Holder.
Section V.2. No Fractional Shares. No fractional shares of
Common Stock shall be issued upon exercise of the Warrants. If more than one
Warrant is exercised by the same Holder at one time, the number of full shares
issuable upon such exercise shall be computed on the basis of the aggregate
number of Warrants so exercised. Instead of any fractional share of Common Stock
that would otherwise be issuable to a holder upon exercise of the Warrants, the
Company shall pay a cash adjustment in respect of such fractional share in an
amount equal to the same fraction of the Closing Price per share of Common Stock
as of the date of such exercise.
Section V.3. Reclassification, Consolidation, Merger or Sale
of Assets. In the event that the Company shall be a party to any transaction
(including without limitation any recapitalization or reclassification of the
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination of the Common Stock and other than the reclassification of unissued
Common Stock into other stock of the Company), any consolidation of the Company
with, or merger of the Company into, any other Person, any merger of another
person into the Company (other than a merger which does not result in a
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), any sale or transfer of all or substantially all
of the assets of the Company or any compulsory share exchange) pursuant to which
the Common Stock is converted into the right to receive other securities, cash
or other property, then lawful provisions shall be made as part of the terms of
such transaction whereby the holder of each Warrant then outstanding shall have
the right thereafter to exercise such Warrant only for (i) in the case of any
such transaction other than a Common Stock Fundamental Change (as defined in
Section 5.06(b)) and subject to funds being legally available for such purpose
under applicable law at the time of such exercise, the kind and amount of
securities, cash and other property receivable upon such transaction by a holder
of the number of shares of Common Stock of the Company for which such Warrant
could have been exercised immediately prior to such transaction, and (ii) in the
case of a Common Stock Fundamental Change, common stock of the kind received by
holders of Common Stock as a result of such Common Stock Fundamental Change in
an amount determined pursuant to the provisions of Section 5.05. The Company or
the Person formed by such consolidation or resulting from such merger or which
acquires such assets or which acquires the Company's shares, as the case may be,
shall execute an agreement in form and substance reasonably acceptable to the
Holders evidencing such right. Such agreement shall provide for adjustments
which, for events subsequent to the effective date of such agreement, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article VI. The above provisions shall similarly apply to each and every
successive transaction of the foregoing type.
Section V.4. Prior Notice of Certain Events. In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Common Stock, other than (A) a dividend payable
in shares of Common Stock or (B) a dividend payable in cash in an
amount not greater than its retained earnings other than any special
or nonrecurring or other extraordinary dividend or (ii) declare or
authorize a redemption or repurchase of in excess of 10% of the
then-outstanding shares of Common Stock; or
(b) the Company shall authorize the granting to all holders of
Common Stock of rights or warrants to subscribe for or purchase any
share of stock of any class or series or of any other rights or
warrants; or
(c) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par
value to par value and other than the reclassification of unissued
Common Stock into other stock of the Company), or of any consolidation
or merger to which the Company is a party and for which approval of
any shareholders of the Company shall be required, or of the sale or
transfer of all or substantially all of the assets of the Company or
of any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or other property; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be delivered to the Holders, at least 10 days
prior to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record (if any) is to be taken for the purpose
of such dividend, distribution, redemption, repurchase, rights or warrants or,
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, redemption, rights or
warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer, share
exchange, dissolution, liquidation or winding up (but no failure to mail such
notice or any defect therein or in the mailing thereof shall affect the validity
of the corporate action required to be specified in such notice).
Section V.5. Adjustments in Case of Fundamental Changes. (a)
Notwithstanding any other provision in this Article 6 to the contrary, if any
Fundamental Change (as defined in Section 5.06(c)) occurs, then the Shares
Amount in effect will be adjusted immediately after such Fundamental Change as
described in Section 5.05(c). In addition, in the event of a Common Stock
Fundamental Change (as defined in Section 5.06(b)), each Warrant shall be
exercisable solely in exchange for common stock of the kind and amount received
by holders of Common Stock as a result of such Common Stock Fundamental Change
as more specifically provided in Section 5.05(b).
(b) For purposes of calculating any adjustment to be made
pursuant to this Section 5.05 in the event of a Fundamental Change, immediately
after such Fundamental Change in the case of a Common Stock Fundamental Change,
the Shares Amount in effect immediately prior to such Common Stock Fundamental
Change, but after giving effect to any other prior adjustments effected pursuant
to this Article V, shall thereupon be adjusted by multiplying such Shares Amount
by a fraction of which the denominator shall be the Purchaser Stock Price (as
defined in Section 5.06(e)) and the numerator shall be the Applicable Price (as
defined in Section 5.06(a)); provided, however, that in the event of a Common
Stock Fundamental Change in which (A) 100% by value of the consideration
received by a holder of Common Stock is common stock of the successor, acquiror
or other third party (and cash, if any, is paid with respect to any fractional
interests in such common stock resulting from such Common Stock Fundamental
Change) and (B) all of the Common Stock shall have been exchanged for, converted
into or acquired for common stock (and cash with respect to fractional
interests) of the successor, acquiror or other third party, the Shares Amount in
effect immediately prior to such Common Stock Fundamental Change shall thereupon
be adjusted by multiplying such Shares Amount by the number of shares of common
stock of the successor, acquiror, or other third party received by a shareholder
for one share of Common Stock as a result of such Common Stock Fundamental
Change.
Section V.6. Definitions. The following definitions shall apply to terms
used in this Article V:
(a) "Applicable Price" means (1) in the event of a Non-Stock
Fundamental Change in which the holders of the Common Stock receive only cash,
the amount of cash received by a shareholder for one share of Common Stock and
(2) in the event of any other Non-Stock Fundamental Change or any Common Stock
Fundamental Change, the average of the daily Closing Prices of the Common Stock
for the ten consecutive Trading Days prior to and including the record date for
the determination of the holders of Common Stock entitled to receive securities,
cash or other property in connection with such Non-Stock Fundamental Change or
Common Stock Fundamental Change, or, if there is no such record date, the date
upon which the holders of the Common Stock shall have the right to receive such
securities, cash or other property, in each case, as adjusted in good faith by
the Board of Directors of the Company to appropriately reflect any of the events
referred to in Section 5.01(a), (b), (c), (d), (e), (f) and (h).
(b) "Common Stock Fundamental Change" means any Fundamental
Change in which more than 50% by value (as determined in good faith by the Board
of Directors) of the consideration received by holders of Common Stock consists
of common stock that for each of the ten consecutive Trading Days referred to
with respect to such Fundamental Change in Section 5.05(i) above has been
admitted for listing or admitted for listing subject to notice of issuance on a
national securities exchange or quoted on the NASDAQ National Market System;
provided, however, that a Fundamental Change shall not be a Common Stock
Fundamental Change unless either (1) the Company continues to exist after the
occurrence of such Fundamental Change and the outstanding Warrants continue to
exist as outstanding Warrants, or (2) not later than the occurrence of such
Fundamental Change, the outstanding Warrants are converted into or exchanged for
warrants of a corporation succeeding to the business of the Company, which
warrants have terms identical to those of the Warrants.
(c) "Fundamental Change" means the occurrence of any
transaction or event in connection with a plan pursuant to which all or
substantially all of the Common Stock shall be exchanged for, converted into,
acquired for or constitute solely the right to receive securities, cash or other
property (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise); provided, however, in the case of a plan involving more than one
such transaction or event, for purposes of adjustment of the Shares Amount, such
Fundamental Change shall be deemed to have occurred when substantially all of
the Common Stock of the Company shall be exchanged for, converted into, or
acquired for or constitute solely the right to receive cash, securities,
property or other assets, but the adjustment shall be based upon the highest
weighted average of consideration per share which a holder of Common Stock could
have received in such transactions or events as a result of which more than 50%
of the Common Stock shall have been exchanged for, converted into, or acquired
for or constitute solely the rights to receive cash, securities, property or
other assets.
(d) "Non-Stock Fundamental Change" means any Fundamental
Change other than a Common Stock Fundamental Change.
(e) "Purchaser Stock Price" means, with respect to any Common
Stock Fundamental Change, the average of the daily Closing Prices of the common
stock received in such Common Stock Fundamental Change for the ten consecutive
Trading Days prior to and including the record date for the determination of the
holders of Common Stock entitled to receive such common stock, or, if there is
no such record date, the date upon which the holders of the Common Stock shall
have the right to receive such common stock, in each case, as adjusted in good
faith by the Board of Directors to appropriately reflect any of the events
referred to in Section 5.01(a), (b), (c), (d), (e), (f) and (h); provided,
however, if no such Closing Prices of the common stock for such Trading Days
exist, then the Purchaser Stock price shall be set at a price determined in good
faith by the Board of Directors.
Section V.7. Certain Additional Rights. In case the Company
shall, by dividend or otherwise, declare or make a distribution on the Common
Stock referred to in Section 5.01(d) or 5.01(e) (including, without limitation,
dividends or distributions referred to in the last two sentences of Section
5.01(d)), the holder of each Warrant, upon the exercise thereof subsequent to
the Close of Business on the date fixed for the determination of shareholders
entitled to receive such distribution and prior to the effectiveness of the
Shares Amount adjustment in respect of such distribution, shall also be entitled
to receive for each share of Common Stock for which such Warrant is exercised,
the portion of the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of stock, cash and assets so distributed applicable to one
share of Common Stock; provided, however, that, at the election of the Company
(whose election shall be evidenced by a resolution of the Board of Directors)
with respect to all holders so exercising, the Company may, in lieu of
distributing to such holder any portion of such distribution not consisting of
cash or securities of the Company, pay such holder an amount in cash equal to
the fair market value thereof (as determined in good faith by the Board of
Directors and described in a resolution of the Board of Directors). If any
exercise of a Warrant described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Common Stock which
the holder of the Warrant so exercised is entitled to receive in accordance with
the immediately preceding sentence, the Company may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
holder a due xxxx for the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of stock, cash or assets to which such holder is so
entitled, provided that such due xxxx (i) meets any applicable requirements of
the principal national securities exchange or other market on which the Common
Stock is then traded and (ii) requires payment or delivery of such shares of
Common Stock, rights, warrants, evidences of indebtedness, shares of stock, cash
or assets no later than the date of payment or delivery thereof to holders of
shares of Common Stock receiving such distribution.
Section V.8. Reservation of Shares, etc. (a) The Company shall
at all times reserve and keep available, free from preemptive rights out of its
authorized and unissued stock, solely for the purpose of allowing the exercise
of the Warrants, such number of shares of its Common Stock as shall from time to
time be sufficient to permit the Company to deliver the Shares Amount in the
event all of the Warrants from time to time outstanding were exercised. The
Company shall from time to time, in accordance with the laws of the State of
Delaware, increase the authorized number of shares of Common Stock if at any
time the number of shares of authorized and unissued Common Stock shall not be
sufficient to permit the Company to deliver the Shares Amount upon the exercise
of all of the then-outstanding Warrants (taking into account the adjustments to
the Shares Amount that are provided for herein).
(b) If any shares of Common Stock required to be reserved for
purposes of the exercise of the Warrants hereunder require registration with or
approval of any governmental authority under any Federal or State law before
such shares may be issued upon exercise, and an exemption under Section 3(a)(9)
of the Securities Act or similar exemption is not available, the Company will in
good faith and as expeditiously as possible endeavor to cause such shares to be
duly registered or approved as the case may be. If the Common Stock is quoted on
the NASDAQ National Market System or listed on any U.S. national securities
exchange, the Company will, if permitted by the rules of such exchange, list and
keep listed on such exchange, upon official notice of issuance, all shares of
Common Stock issuable upon exercise of the Warrants. The second sentence of this
paragraph shall apply only when the Warrants shall have become freely
transferable pursuant to Rule 144(k) under the Securities Act or if the shares
of Common Stock issuable upon exercise of the Warrants are exempt from the
registration requirements of the Securities Act by operation of an exemption
referred to in the first sentence of this paragraph.
Section V.9. Dividend or Interest Reinvestment Plans or Other
Plans. Notwithstanding the foregoing provisions, the issuance of any shares of
Common Stock pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Company and the investment of additional
optional amounts in shares of Common Stock under any such plan (i.e., a "DRIP"),
and the issuance of any shares of Common Stock or options or rights to purchase
such shares pursuant to any employee or director benefit plan or program of the
Company or pursuant to any option, warrant, right or exercisable, exchangeable
or convertible security outstanding as of the date hereof shall not be deemed to
constitute an issuance of Common Stock or exercisable, exchangeable or
convertible securities by the Company to which any of the adjustment provisions
described above applies. In addition, no adjustment to the Shares Amount or Cash
Amount pursuant to this Article V shall be made in respect of any transaction
expressly permitted by Section 7.02(h)(iii) of the Credit Agreement. If any
action would require adjustment of the Shares Amount pursuant to more than one
of the provisions described in this Article V only one adjustment shall be made
and such adjustment shall be the amount of adjustment which has the highest
absolute value to holders of the Warrants.
ARTICLE VI
Representations and Warranties
The Company hereby represents and warrants, as of the date of
this Agreement, as follows:
Section VI.1. Good Standing and Power. The Company is a corporation, duly
incorporated and validly existing in good standing under the laws of the
jurisdiction of its incorporation.
Section VI.2. Corporate Authority. The Company has full
corporate power and authority to execute and deliver, and to incur and perform
its obligations under, this Agreement and each Warrant Certificate, all of which
have been duly authorized and will have been duly authorized by all proper and
necessary corporate action. No consent or approval of stockholders is required
or will be required as a condition to the validity or performance of, or the
exercise by any Holder of any of its rights or remedies under, this Agreement or
any Warrant Certificate.
Section VI.3. Authorizations. All authorizations, consents,
approvals, registrations, notices, exemptions and licenses with or from any
Governmental Authority or other Person necessary for the execution, delivery and
performance by the Company of, and the incurrence and performance of each of its
obligations under, this Agreement and each Warrant Certificate, and the exercise
by any Holder of its remedies under this Agreement or any Warrant Certificate
have been effected or obtained and are and will be in full force and effect.
Section VI.4. Binding Obligation. This Agreement constitutes
and, when issued in accordance with the terms hereof, each Warrant Certificate
will constitute, a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
Section VI.5. No Conflicts. There is no statute, regulation,
rule, order or judgment, and no provision of any agreement or instrument binding
upon the Company or any of its subsidiaries, or affecting their properties, and
no provision of the certificate of incorporation or bylaws of the Company or any
of its subsidiaries, that would prohibit, conflict with or in any way impair the
execution or delivery of, or the incurrence or performance of any obligations of
the Company under, this Agreement or any Warrant Certificate, or result in or
require the creation or imposition of any lien, charge or encumbrance of any
type on property of the Company or any of its subsidiaries as a consequence of
the execution, delivery and performance of this Agreement or any Warrant
Certificate.
Section VI.6. Reservation. The Board of Directors has unanimously adopted
the resolutions set forth in Exhibit B.
ARTICLE VII
Covenants
Section VII.1. Reservation of Common Stock for Issuance on
Exercise of Warrants. The Company covenants that it will at all times reserve
and keep available, free from preemptive rights, out of its authorized but
unissued shares of Common Stock, solely for the purpose of issue upon exercise
of Warrants, as herein provided, such number of shares of Common Stock as shall
then be issuable upon the exercise of all Warrants issued hereunder. The
transfer agent for the Common Stock (the "Transfer Agent") will be irrevocably
authorized and directed at all times to reserve such number of authorized shares
as shall be required for such purpose. The Company will keep a copy of this
Agreement on file with the Transfer Agent. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
the stock certificates required to honor outstanding Warrants upon exercise
thereof in accordance with the terms of this Agreement. The Company represents,
warrants and covenants that, upon payment therefor, all shares of Common Stock
issued upon the exercise of warrants shall be duly authorized, validly issued,
fully paid and nonassessable, free of preemptive rights and free from all taxes,
liens, charges and security interests with respect to the issuance thereof.
Section VII.2. Notice of Dividends. At any time when and if
the Company declares any dividend on Common Stock, it shall give notice to the
Holders of all the then outstanding Warrants of any such declaration not fewer
than 10 days prior to the related record date for payment of the dividend so
declared.
Section VII.3. Reports. For so long as any Warrants remain
outstanding and not expired by their terms, the Company shall furnish to the
Holders the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act. In addition, the Company shall furnish to the Initial
Holder within ten days after it files them with the Commission copies of its SEC
Reports. In the event the Company shall cease to be required to file SEC Reports
pursuant to the Exchange Act, the Company shall nevertheless mail such SEC
Reports to Holders upon their request.
ARTICLE VIII
Holders
Section VIII.1. Holder Not Deemed a Shareholder. No Holder, as
such, shall be entitled to vote, receive dividends or be deemed for any purpose
the holder of Common Stock or any other securities of the Company which may at
any time be issuable on the exercise or conversion of the Warrants represented
thereby, nor shall anything contained herein or in any Warrant Certificate be
construed to confer upon a Holder, as such, any of the rights of a stockholder
of the Company or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as specifically provided herein), or to
receive dividends or subscriptions rights, or otherwise, until the Warrant or
Warrants evidenced by such Warrant Certificate shall have been exercised and the
Company shall have elected to deliver Common Stock (and not cash) upon such
exercise.
Section VIII.2. Right of Action. All rights of action in
respect of this Agreement are vested in the Holders, and any Holder of any
Warrant, without consent of any other Holder, may on such Holder's own behalf
and for such Holder's own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise
in respect of, such Holder's right to exercise or exchange such Holder's
Warrants in the manner provided in this Agreement.
ARTICLE IX
Miscellaneous
Section IX.1. Payment of Taxes. The Company shall pay all
transfer, stamp and other similar taxes that may be imposed in respect of the
issuance or delivery of Warrants, or in respect of the issuance or delivery of
any securities upon exercise of Warrants, and any and all filing fees incurred
by a Holder in connection with the matters described in Section 3.07(c)(ii). The
Company shall not be required, however, to pay any tax or other charge imposed
in connection with any transfer involved in the issue of any certificate for
shares of Common Stock or other securities underlying the Warrants or payment of
cash to any Person other than the Holder of a Warrant Certificate surrendered
upon the exercise or purchase of a Warrant, and in case of such transfer or
payment, the Company shall not be required to issue any stock certificate or pay
any cash until such tax or charge has been paid or it has been established to
the Company's reasonable satisfaction that no such tax or other charge is due.
Section IX.2. Expenses; Indemnity. (a) The Company agrees to
pay or reimburse the Initial Holder for all reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, any Warrant, any Warrant Certificate, and any such other
documents, including, without limitation, the reasonable fees and disbursements
of counsel to the Initial Holder (but excluding fees and disbursements incurred
on or prior to the date hereof in negotiating and preparing this Agreement and
the related documents); provided, however, that in the event of any litigation
between the Company and any Holder initiated prior to any Event of Default
specified in Section 8.01(g) or (h) of the Credit Agreement and arising out of
the matters set forth in Section 9.04(b)(i), the fees and disbursements of
counsel to the Initial Holder shall be borne by the Company if and only if the
Initial Holder is the prevailing party.
(b) The Company agrees to indemnify the Initial Holder and its
directors, officers, employees, agents and Affiliates (each, an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all claims,
liabilities, damages, losses, costs, charges and expenses (including fees and
expenses of counsel) incurred by or asserted against any Indemnitee arising out
of, in any way connected with, or as a result of (i) the execution or delivery
of this Agreement or any agreement or instrument contemplated by this Agreement,
the performance by the parties hereto of their respective obligations under this
Agreement, any Warrant or any Warrant Certificate or the consummation of the
transactions and the other transactions contemplated hereby or thereby, (ii) the
use of the proceeds of the exercise of Warrants or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto. The provisions of this Section 9.04(b) shall not
operate or be construed to indemnify the Initial Holder against, or hold it
harmless from, any claims, liabilities, damages, losses, costs, charges and
expenses (including fees and expenses of counsel) incurred by or asserted
against the Initial Holder arising out of or connected with any litigation
initiated prior to any Event of Default specified in Section 8.01(g) or (h)
solely between the Company and the Initial Holder in which the Initial Holder is
not the prevailing party.
(c) All amounts due under this Section 9.02 shall be payable in immediately
available funds upon written demand therefor.
Section IX.3. APPLICABLE LAW. THIS AGREEMENT, EACH WARRANT
CERTIFICATE, EACH WARRANT ISSUED HEREUNDER 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 IX.4. WAIVER OF JURY. THE COMPANY AND THE INITIAL
HOLDER 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, ANY WARRANT CERTIFICATE, ANY WARRANT ISSUED HEREUNDER AND ANY RIGHT
ARISING HEREUNDER.
Section IX.5. Jurisdiction and Venue; Service of Process. (a)
The Company and the Initial Holder 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, any Warrant
Certificate, any Warrant issued hereunder 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 Initial Holder 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 9.08 or at such other address of
which the Initial Holder 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 any
other jurisdiction.
(c) Each of the Initial Holder and the Company 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 9.05 any special,
exemplary, punitive or consequential damages.
Section IX.6. 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
Initial Holder.
(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 IX.7. Cumulative Rights; No Waiver. Each and every
right granted to any Holder hereunder or under any Warrant Certificate, or
allowed such Holder by law or equity, shall be cumulative and not exclusive and
may be exercised from time to time. No failure on the part of any Holder to
exercise, and no delay in exercising, any right will operate as a waiver
thereof, nor will any single or partial exercise by any Holder of any right
preclude any other or future exercise thereof or the exercise of any other
right.
Section IX.8. Notices. (a) 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 9.08 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 Initial Holder, 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 IX.9. Separability. In case any one or more of the
provisions contained in this Agreement or any Warrant Certificate 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 or any Warrant Certificate shall not in any way be affected or
impaired thereby.
Section IX.10. Persons Benefitting. This Agreement shall be
binding upon and inure to the benefit of any Holders (each of whom is an
intended third party beneficiary) 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 Holders (and such successors, assigns,
beneficiaries, executors and administrators), any right, remedy or claim under
or by reason of this Agreement or any part hereof.
Section IX.11. 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 IX.12. 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.
Section IX.13. Remedies. In the event of a breach by the
Company or by a Holder of any of their obligations under this Agreement or any
Warrant Certificate, each Holder or the Company, as the case may be, in addition
to being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement and such Warrant Certificate. The Company and the Initial Holder agree
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of any of the provisions of this Agreement or any
Warrant Certificate and hereby further agrees that, in the event of any action
for specific performance in respect of such breach, it shall waive the defense
that a remedy at law would be adequate.
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:
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT
BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED PURSUANT
TO THERETO OR UNLESS AN EXEMPTION THEREFROM IS
AVAILABLE.
WARRANTS TO PURCHASE COMMON STOCK
OF MIRAVANT MEDICAL TECHNOLOGIES
No._______ Certificate for ______ Warrants
This certifies that , or registered assigns, is the registered
holder of the number of Warrants set forth above. Each Warrant entitles the
holder thereof (a "Holder"), subject to the provisions contained herein and in
the Warrant Agreement referred to below, to purchase, from Miravant Medical
Technologies, a Delaware corporation (the "Company"), the number of shares of
the Company's common stock, par value $.01 per share (the "Common Stock"),
provided in the Warrant Agreement, at an exercise price of $__________ per
Warrant and subject to all of the terms and conditions set forth in the Warrant
Agreement. At the sole election of the Company, upon the exercise of any
Warrant, the Company may pay to the Holder a certain amount of cash, as provided
in the Warrant Agreement, in lieu of delivering the shares of Common Stock.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement, dated as of o, 1999 (the "Warrant Agreement"),
between the Company and Pharmacia & Upjohn, Inc. (the "Initial Holder"), and is
subject to the terms and provisions contained in the Warrant Agreement, to all
of which terms and provisions the Holder of this Warrant Certificate consents by
acceptance hereof. The Warrant Agreement is hereby incorporated herein by
reference and made a part hereof. Reference is hereby made to the Warrant
Agreement for a full statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company and the Holders of
the Warrants.
This Warrant Certificate shall terminate and be void as of the
Close of Business on _________, 200__.
As provided in the Warrant Agreement and subject to the terms
and conditions therein set forth, the Warrants shall be exercisable from time to
time on any Business Day ending on the Expiration Date.
The number of shares of Common Stock issuable, and the amount
of cash payable, upon the exercise of each Warrant are subject to adjustment as
provided in the Warrant Agreement.
Upon payment therefor, all shares of Common Stock issued upon
the exercise of Warrants shall be duly authorized, validly issued, fully paid
and nonassessable free of preemptive rights and free from all taxes, liens,
charges and security interests with respect to the issuance thereof.
In order to exercise a Warrant, the registered holder hereof
must surrender this Warrant Certificate to the Registrar for the Warrants (the
"Registrar") with the form of election on the reverse hereof or attached hereto
duly executed, together with payment of the Exercise Price then in effect for
the share(s) of Common Stock as to which the Warrant(s) represented by this
Warrant Certificate are submitted for exercise, all subject to the terms and
conditions hereof and of the Warrant Agreement. Any such payment of the cash
Exercise Price shall be by certified or official bank check or wire transfer to
the Company of same day funds.
The Company shall pay all transfer, stamp and other similar
taxes that may be imposed in respect of the issuance or delivery of Warrants, or
in respect of the issuance or delivery of any securities upon exercise of
Warrants. The Company shall not be required, however, to pay any tax or other
charge imposed in connection with any transfer involved in the issuance of any
certificate for shares of Common Stock or other securities underlying the
Warrants or payment of cash to any Person other than the Holder of a Warrant
Certificate surrendered upon the exercise or purchase of a Warrant, and in case
of such transfer or payment, the Company shall not be required to issue any
stock certificate or pay any cash until such tax or other charge has been paid
or it has been established to the Company's reasonable satisfaction that no such
tax or other charge is due.
Subject to the Warrant Agreement, this Warrant Certificate and
all rights hereunder are transferable by the registered holder hereof, in whole
or in part, on the Warrant Register of the Company, upon surrender of this
Warrant Certificate to the Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in form reasonably satisfactory to the Company
duly executed by the Holder hereof or his attorney duly authorized in writing.
Upon any partial transfer, the Company will issue and deliver to such holder a
new Warrant Certificate or Certificates with respect to any portion not so
transferred.
No service charge shall be made for any transfer or exchange
of this Warrant Certificate, but the Company may require payment from the Holder
of this Warrant Certificate of a sum sufficient to cover any stamp or other
governmental charge or tax that may be imposed in connection with any such
transfer or exchange.
Each taker and holder of this Warrant Certificate, by taking
or holding the same, consents and agrees that this Warrant Certificate, when
duly endorsed in blank, shall be deemed negotiable and that when this Warrant
Certificate shall have been so endorsed, the holder hereof may be treated by the
Company, the Registrar and all other persons dealing with this Warrant
Certificate as the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby, or to the transfer hereof on
the register of the Company maintained by the Registrar, any notice to the
contrary notwithstanding, but until such transfer on such register, the Company
and the Registrar may treat the registered Holder hereof as the owner for all
purposes.
This Warrant Certificate and the Warrant Agreement are subject
to amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate that are defined in
the Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
Copies of the Warrant Agreement are on file at the office of the Company
and may be obtained by writing to the Company at the following address: 0000
Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial
Officer.
Dated: __________.
MIRAVANT MEDICAL TECHNOLOGIES
By:
Name:
Title:
By:
Name:
Title:
ELECTION TO EXERCISE
(To be executed only upon exercise of Warrant)
TO MIRAVANT MEDICAL TECHNOLOGIES:
The undersigned irrevocably exercises __________ of the
Warrants for, at your election, either (i) the Shares Amount or (ii) the Cash
Amount, and herewith makes payment of $__________ (such payment being by
certified or official bank check payable to the order of Miravant Medical
Technologies), all at the Exercise Price and on the terms and subject to the
conditions specified in the within Warrant Certificate and the Warrant Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to Miravant Medical Technologies, Inc. and directs that any
shares of Common Stock deliverable upon the exercise of such Warrants be
registered in the name and delivered at the address specified on the following
page, or any Cash Amount be wired to the account specified on the following
page.
Date:
(Signature of Holder)
(Street Address)
(City) (State) (Zip Code)
Securities and/or check to be issued to:
Taxpayer identification number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Taxpayer identification number:
Wire transfer instructions:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder of the
within Warrant Certificate hereby sells, assigns, and transfers unto the
Assignee(s) named below (including the undersigned with respect to any Warrants
constituting a part of the Warrants evidenced by the within Warrant Certificate
not being assigned hereby) all of the rights of the undersigned under the within
Warrant Certificate, with respect to the number of Warrants set forth below:
Social Security or
Names of Address Taxpayer Identification Number of Warrants
Assignees Number of Assignee(s)
and does hereby irrevocably constitute and appoint the
undersigned's attorney to make such transfer on the books
of maintained for that purpose, with full power of
substitution in the premises.
Dated: __________.
(Signature of Holder)
(Street Address)
(City)(State) (Zip Code)
EXHIBIT B
[BOARD RESOLUTIONS]
[To come]
