SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is entered into as of
August 27, 2002, by and between MIRAVANT MEDICAL TECHNOLOGIES, a Delaware
corporation (the "Company"), with headquarters located at 000 Xxxxxx Xxxxx,
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000, and the purchasers (collectively, the
"Purchasers" and each a "Purchaser") set forth on Schedule 1 hereof, with regard
to the following:
RECITALS
A. The Company and Purchasers are executing and delivering this Agreement
in reliance upon the exemption from securities registration afforded by the
provisions of Regulation D ("Regulation D"), as promulgated by the United States
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "Securities Act").
B. The Purchasers desire to (a) purchase, upon the terms and conditions
stated in this Agreement, shares of the Company's Common Stock, par value $.01
per share (the "Common Stock") and (b) to purchase, upon the terms and
conditions stated in this Agreement, the Stock Purchase Warrants (the
"Warrants"), in the form attached hereto as Exhibit A, to acquire shares of
Common Stock. The shares of Common Stock issuable upon exercise of or otherwise
pursuant to the Warrants are referred to herein as "Warrant Shares". The shares
of Common Stock issued to the Purchasers hereunder (exclusive of the Warrant
Shares) are referred to herein as the "Common Shares". The Common Shares, the
Warrants, and the Warrant Shares are collectively referred to herein as the
"Securities".
C. Contemporaneously with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement in
the form attached hereto as Exhibit B (the "Registration Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act, the rules and regulations promulgated thereunder and
applicable state securities laws.
AGREEMENTS
NOW, THEREFORE, in consideration of their respective promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and Purchasers hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF COMMON STOCK AND WARRANTS
1.1 Purchase of Common Stock and Warrants. Subject to the terms and
conditions of this Agreement, the issuance, sale and purchase of the Common
Shares and Warrants shall be consummated in a "Closing." The purchase price (the
"Purchase Price") shall be FIFTY CENTS ($0.50) per Unit. Each Unit will purchase
one (1) share of Common Stock, and a one-half (1/2) Warrant for the purchase of
one-half (1/2) a share of Common Stock at an exercise price of FIFTY CENTS
($0.50) for one (1) full Warrant share, with a term of five (5) years. The
negotiated price per Unit of FIFTY CENTS ($0.50) represents the ten (10) day
closing stock price average prior to August 27, 2002, and includes consideration
for the Warrant portion of a Unit. Each Purchaser agrees to purchase the amounts
set forth on Schedule 1 hereof. On the date of the Closing, subject to the
satisfaction or waiver of the conditions set forth in Articles VI and VII
hereof, the Company shall issue and sell to each Purchaser, and each Purchaser
severally agrees to purchase from the Company, the number of shares of Common
Stock set forth on the signature page executed by such Purchaser. Each
Purchaser's obligation to purchase Common Shares and Warrants hereunder is
distinct and separate from each other Purchaser's obligation to purchase, and no
Purchaser shall be required to purchase hereunder more than the number of Common
Shares and Warrants set forth on such Purchaser's signature page. The
obligations of the Company with respect to each Purchaser shall be separate from
the obligations of each other Purchaser and shall not be conditioned as to any
Purchaser upon the performance of obligations of any other Purchaser.
1.2 Form of Payment. Each Purchaser shall pay the aggregate Purchase Price
for the Common Shares and Warrants being purchased by such Purchaser by wire
transfer to the account designated by the Company.
1.3 Closing Date. Subject to the satisfaction (or waiver) of the conditions
set forth in Articles VI and VII below, the date and time of the issuance, sale
and purchase of the Common Shares and Warrants pursuant to this Agreement shall
be at 10:00 a.m. California time, on August 28, 2002.
ARTICLE II
PURCHASER'S REPRESENTATIONS AND
WARRANTIES
Each Purchaser represents and warrants as of the date hereof and as of the
Closing, severally and solely with respect to itself and its purchase hereunder
and not with respect to any other Purchaser or the purchase hereunder by any
other Purchaser (and no Purchaser shall be deemed to make or have any liability
for any representation or warranty made by any other Purchaser), to the Company
as set forth in this Article II. No Purchaser makes any other representations or
warranties, express or implied, to the Company in connection with the
transactions contemplated hereby and any and all prior representations and
warranties, if any, which may have been made by a Purchaser to the Company in
connection with the transactions contemplated hereby shall be deemed to have
been merged in this Agreement and any such prior representations and warranties,
if any, shall not survive the execution and delivery of this Agreement.
2.1 Investment Purpose. Purchaser is purchasing the Common Shares and the
Warrants for Purchaser's own account for investment only and not with a view
toward or in connection with the public sale or distribution thereof. Purchaser
will not, directly or indirectly, offer, sell, pledge or otherwise transfer its
Common Shares or Warrants or any interest therein except pursuant to
transactions that are exempt from the registration requirements of the
Securities Act and/or sales registered under the Securities Act. Purchaser
understands that Purchaser must bear the economic risk of this investment
indefinitely, unless the Securities are registered pursuant to the Securities
Act and any applicable state securities laws or an exemption from such
registration is available, and that the Company has no present intention of
registering any such Securities other than as contemplated by the Registration
Rights Agreement.
2.2 Accredited Investor Status. Purchaser is an "accredited investor" as
that term is defined in Rule 501(a) of Regulation D.
2.3 Reliance on Exemptions. Purchaser understands that the Common Shares
and Warrants are being offered and sold to Purchaser in reliance upon specific
exemptions from the registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of,
and Purchaser's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of Purchaser set forth herein in order to
determine the availability of such exemptions and the eligibility of Purchaser
to acquire the Common Shares and Warrants.
2.4 Information. Purchaser or its counsel have made available all materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities which have been specifically
requested by Purchaser, including without limitation the Company's Annual Report
on Form 10-K and Form 10-K/A for the Year ended December 31, 2001, Quarterly
Reports on Form 10-Q for the periods ended March 31, 2002 and June 30, 2002 and
filed with the SEC (such documents collectively, the "SEC Documents"). Purchaser
has been afforded the opportunity to ask questions of the Company, was permitted
to meet with the Company's officers and has received what the Purchaser believes
to be complete and satisfactory answers to any such inquiries. Neither such
inquiries nor any other due diligence investigation conducted by Purchaser or
any of its representations shall modify, amend or affect Purchaser's right to
rely on the Company's representations and warranties contained in Article III.
Purchaser understands that Purchaser's investment in the Securities involves a
high degree of risk, including without limitation the risks and uncertainties
disclosed in the SEC Documents. Purchaser acknowledges the disclosures presented
under the caption "Risk Factors" in the Company's Form 10-Q filed on August 14,
2002, and the incorporation of those disclosures by reference herein.
2.5 Governmental Review. Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities.
2.6 Transfer or Resale. Purchaser understands that (i) except as provided
in the Registration Rights Agreement, the Securities have not been and are not
being registered under the Securities Act or any state securities laws, and may
not be offered, sold, pledged or otherwise transferred unless subsequently
registered thereunder or an exemption from such registration is available (which
exemption the Company expressly agrees may be established as contemplated in
clauses (b) and (c) of Section 5.1 hereof); (ii) any sale of such Securities
made in reliance on Rule 144 under the Securities Act (or a successor rule)
("Rule 144") may be made only in accordance with the terms of Rule 144 and
further, if Rule 144 is not applicable, any resale of such Securities without
registration under the Securities Act under circumstances in which the seller
may be deemed to be an underwriter (as that term is defined in the Securities
Act) may require compliance with some other exemption under the Securities Act
or the rules and regulations of the SEC thereunder in order for such resale to
be allowed, (iii) the Company is under no obligation to register such Securities
under the Securities Act or any state securities laws or to comply with the
terms and conditions of any exemption thereunder (in each case, other than
pursuant to this Agreement or the Registration Rights Agreement) and (iv) the
Company has agreed to register the shares of Common Stock as provided in the
Registration Rights Agreement.
2.7 Legends. Purchaser understands that, subject to Article V hereof, the
certificates for the Warrants and, until such time as the Common Shares and
Warrant Shares have been registered under the Securities Act as contemplated by
the Registration Rights Agreement or otherwise may be sold by Purchaser pursuant
to Rule 144 (subject to and in accordance with the procedures specified in
Article V hereof), the certificates for the Common Shares and Warrant Shares and
the Warrants will bear a restrictive legend (the "Legend") in the following
form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES. THE SECURITIES REPRESENTED HEREBY MAY
NOT BE OFFERED OR SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE
SECURITIES LAWS OR UNLESS OFFERED, SOLD OR TRANSFERRED PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
2.8 Authorization: Enforcement. This Agreement and the Registration Rights
Agreement have been duly and validly authorized, executed and delivered on
behalf of Purchaser and are valid and binding agreements of Purchaser
enforceable in accordance with their respective terms, except to the extent that
such validity or enforceability may be subject to or affected by any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally the enforcement of, creditors' rights or remedies of
creditors generally, or by other equitable principles of general application.
2.9 Residency. Purchaser is a resident of the jurisdiction set forth under
Purchaser's name on the signature page hereto executed by Purchaser.
2.10 Unrelated Entities. Each Purchaser represents that it is unrelated to
any of the other Purchasers.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Purchaser as of the date hereof
and as of the Closing that:
3.1 Organization and Qualification. Each of the Company and its
subsidiaries is a corporation duly organized and existing in good standing under
the laws of the jurisdiction in which it is incorporated, and has the requisite
corporate power to own its properties and to carry on its business as now being
conducted. The Company and each of its subsidiaries is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
where the failure so to qualify or be in good standing would have a Material
Adverse Effect. "Material Adverse Effect" means any effect which, individually
or in the aggregate with all other effects, reasonably would be expected to be
materially adverse to the business, operations, properties, financial condition,
operating results or prospects of the Company and its subsidiaries, taken as a
whole on a consolidated basis or on the transactions contemplated hereby.
3.2 Authorization; Enforcement. (a) The Company has the requisite corporate
power and authority to enter into and perform this Agreement and the
Registration Rights Agreement, and to issue, sell and perform its obligations
with respect to the Common Shares and Warrants in accordance with the terms
hereof and thereof and the terms of the Common Shares and Warrants, and to issue
Warrant Shares in accordance with the terms and conditions of the Warrants; (b)
the execution, delivery and performance of this Agreement and the Registration
Rights Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby (including, without limitation, the issuance of
the Common Shares and the Warrants, and the issuance and reservation for
issuance of the Warrant Shares) have been duly authorized by all necessary
corporate action and, except as set forth on Schedule 3.2 hereof, no further
consent or authorization of the Company, its board of directors, or its
stockholders or any other person, body or agency is required with respect to any
of the transactions contemplated hereby or thereby; (c) this Agreement, the
Registration Rights Agreement, certificates for the Common Shares, and the
Warrants have been duly executed and delivered by the Company; and (d) this
Agreement, the Registration Rights Agreement, the Common Shares, and the
Warrants constitute legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
except (i) to the extent that such validity or enforceability may be subject to
or affected by any bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of, creditors' rights or remedies of creditors generally, or by other equitable
principles of general application, and (ii) as rights to indemnity and
contribution under the Registration Rights Agreement may be limited by Federal
or state securities laws.
3.3 Capitalization. The capitalization of the Company as of June 30, 2002,
including the authorized capital stock, the number of shares issued and
outstanding, the number of shares reserved for issuance pursuant to the
Company's stock option plans, the number of shares reserved for issuance
pursuant to securities (other than the Warrants) exercisable for, or convertible
into or exchangeable for, any shares of Common Stock and the number of shares to
be reserved for issuance upon exercise of the Warrants is set forth on Schedule
3.3 hereof. All of such outstanding shares of capital stock have been, or upon
issuance will be, validly issued, fully paid and nonassessable. No shares of
capital stock of the Company (including the Common Shares and the Warrant
Shares) are subject to preemptive rights or any other similar rights of the
stockholders of the Company or any liens or encumbrances. Except as disclosed in
Schedule 3.3 hereof, as of the date of this Agreement, (i) there are no
outstanding options, warrants, scrip, rights to subscribe for, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into or exercisable or exchangeable for, any shares of capital stock
of the Company or any of its subsidiaries, or contracts, commitments,
understandings or arrangements by which the Company or any of its subsidiaries
is or may become bound to issue additional shares of capital stock of the
Company or any of its subsidiaries, (ii) issuance of the Securities will not
trigger antidilution rights for any other outstanding or authorized securities
of the Company, and (iii) there are no agreements or arrangements under which
the Company or any of its subsidiaries is obligated to register the sale of any
of its or their securities under the Securities Act (except the Registration
Rights Agreement). The Company has furnished to Purchaser true and correct
copies of the Company's Certificate of Incorporation as in effect on the date
hereof ("Certificate of Incorporation"), and the Company's By-laws as in effect
on the date hereof (the "Bylaws"). The Company has set forth on Schedule 3.3
hereof all instruments and agreements (other than the Certificate of
Incorporation and Bylaws) governing securities convertible into or exercisable
or exchangeable for Common Stock of the Company (and the Company shall provide
to Purchaser copies thereof upon the request of Purchaser).
3.4 Issuance of Shares. The Common Shares and Warrant Shares are duly
authorized and reserved for issuance, and, in the case of the Warrants, upon the
exercise of the Warrants in accordance with the terms thereof, as applicable,
will be validly issued, fully paid and non-assessable, and free from all taxes,
liens, claims and encumbrances imposed or suffered by the Company and will not
be subject to preemptive rights or other similar rights of stockholders of the
Company. The Common Shares and Warrants are duly authorized and validly issued,
fully paid and nonassessable, and free from all liens, claims and encumbrances
imposed or suffered by the Company and are not and will not be subject to
preemptive rights or other similar rights of stockholders of the Company.
3.5 No Conflicts. The execution, delivery and performance of this Agreement
and the Registration Rights Agreement by the Company, and the consummation by
the Company of transactions contemplated hereby and thereby (including, without
limitation, the issuance and reservation for issuance, as applicable, of the
Common Shares, Warrants, and Warrant Shares) do not and will not (a) result in a
violation of the Certificate of Incorporation or Bylaws or (b) conflict with, or
constitute a default (or an event which, with notice or lapse of time or both,
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party, or result
in a violation of any law, rule, regulation, order, judgment or decree
(including U.S. federal and state securities laws) applicable to the Company or
any of its subsidiaries, or by which any property or asset of the Company or any
of its subsidiaries, is bound or affected (except for such possible conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations
as would not, individually or in the aggregate, have a Material Adverse Effect).
Neither the Company nor any of its subsidiaries is in violation of its
Certificate of Incorporation or other organizational documents, and neither the
Company nor any of its subsidiaries, is in default (and no event has occurred
which has not been waived which, with notice or lapse of time or both, would put
the Company or any of its subsidiaries in default) under, nor has there occurred
any event giving others (with notice or lapse of time or both) any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its subsidiaries is a
party, except for possible violations, defaults or rights as would not,
individually or in the aggregate, have a Material Adverse Effect. The businesses
of the Company and its subsidiaries are not being conducted, and shall not be
conducted so long as a Purchaser owns any of the Securities, in violation of any
law, ordinance or regulation of any governmental entity, except for possible
violations the sanctions for which either individually or in the aggregate would
not have a Material Adverse Effect. Except as set forth on Schedule 3.5 hereof,
or except (A) such as may be required under the Securities Act in connection
with the performance of the Company's obligations under the Registration Rights
Agreement, (B) filing of a Form D with the SEC, and (C) compliance with the
state securities or Blue Sky laws of applicable jurisdictions, the Company is
not required to obtain any consent, authorization or order of, or make any
filing or registration with, any court or governmental agency or any regulatory
or self-regulatory agency in order for it to execute, deliver or perform any of
its obligations under this Agreement or the Registration Rights Agreement or to
perform its obligations in accordance with the terms hereof or thereof.
3.6 SEC Documents. Except as disclosed in Schedule 3.6 hereof, since
December 31, 2001, the Company has timely filed the SEC Documents required to be
filed by it with the SEC pursuant to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Company
has made available to each Purchaser true and complete copies of the SEC
Documents, except for exhibits, schedules and incorporated documents. As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. None of the
statements made in any such SEC Documents which is required to be updated or
amended under applicable law has not been so updated or amended. The
consolidated financial statements of the Company included in the SEC Documents
have been prepared in accordance with U.S. generally accepted accounting
principles, consistently applied, and the rules and regulations of the SEC
during the periods involved (except (i) as may be otherwise indicated in such
consolidated financial statements or the notes thereto, or (ii) in the case of
unaudited interim statements, to the extent they do not include footnotes or are
condensed or summary statements) and present accurately and completely the
consolidated financial position of the Company and its consolidated subsidiaries
as of the dates thereof and the consolidated results of their operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). Except as set forth in a
manner clearly evident to a sophisticated institutional investor in the
consolidated financial statements or the notes thereto of the Company included
in the SEC Documents, the Company has no liabilities, contingent or otherwise,
other than (i) liabilities incurred in the ordinary course of business
consistent with past practice subsequent to the date of such financial
statements and (ii) obligations under contracts and commitments incurred in the
ordinary course of business consistent with past practice and not required under
generally accepted accounting principles to be reflected in such financial
statements. To the extent required by the rules of the SEC applicable thereto,
the SEC Documents contain a complete and accurate list of all material
undischarged written or oral contracts, agreements, leases or other instruments
to which the Company or any subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the properties or assets of the Company
or any subsidiary is subject (each a "Contract"). Except as set forth in
Schedule 3.6, none of the Company, its subsidiaries or, to the best knowledge of
the Company, any of the other parties thereto, is in breach or violation of any
Contract, which breach or violation would have a Material Adverse Effect. No
event, occurrence or condition exists which, with the lapse of time, the giving
of notice, or both, would become a default by the Company or its subsidiaries
thereunder which would have a Material Adverse Effect. The Company has not
provided to any Purchaser any material non-public information or any other
information which, according to applicable law, rule or regulation, should have
been disclosed publicly by the Company but which has not been so disclosed.
3.7 Absence of Certain Changes. Since June 30, 2002, there has been no
material adverse change and no material adverse development in the business,
properties, operations, financial condition, results of operations or prospects
of the Company, except as disclosed in Schedule 3.7 or clearly evident to a
sophisticated institutional investor from the SEC Documents.
3.8 Absence of Litigation. Except as disclosed in Schedule 3.8 or as
clearly evident to a sophisticated institutional investor from the SEC
Documents, there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board, government agency, or self-regulatory
organization or body pending or, to the knowledge of the Company or any of its
subsidiaries, threatened against or affecting the Company, any of its
subsidiaries, or any of their respective directors or officers in their
capacities as such, which could reasonably be expected to result in an
unfavorable decision, ruling or finding which would have a Material Adverse
Effect or would adversely affect the transactions contemplated by this Agreement
or any of the documents contemplated hereby or which would adversely affect the
validity or enforceability of, or the authority or ability of the Company to
perform its obligations under, this Agreement or any of such other documents.
There are no facts known to the Company which, if known by a potential claimant
or governmental authority, could reasonably be expected to give rise to a claim
or proceeding which, if asserted or conducted with results unfavorable to the
Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect.
3.9 Disclosure. No information relating to or concerning the Company set
forth in this Agreement contains an untrue statement of a material fact. No
information relating to or concerning the Company set forth in any of the SEC
Documents contains a statement of material fact that was untrue as of the date
such SEC Document was filed with the SEC. The Company has not omitted to state a
material fact necessary in order to make the statements made herein or therein,
in light of the circumstances under which they were made, not misleading. Except
for the execution and performance of this Agreement, no material fact (within
the meaning of the federal securities laws of the United States and of
applicable state securities laws) exists with respect to the Company which has
not been publicly disclosed.
3.10 Acknowledgment Regarding Purchaser's Purchase of the Securities. The
Company acknowledges and agrees that Purchaser is not acting as a financial
advisor or fiduciary of the Company (or in any similar capacity) with respect to
this Agreement or the transactions contemplated hereby, that this Agreement and
the transaction contemplated hereby, and the relationship between each Purchaser
and the Company, are "arms-length," and that any statement made by Purchaser
(except as set forth in Article II), or any of its representatives or agents, in
connection with this Agreement and the transactions contemplated hereby is not
advice or a recommendation, is merely incidental to Purchaser's purchase of the
Securities and has not been relied upon as such in any way by the Company, its
officers or directors. The Company further represents to Purchaser that the
Company's decision to enter into this Agreement and the transactions
contemplated hereby have been based solely on an independent evaluation by the
Company and its representatives.
3.11 S-3 Registration. The Company is not currently eligible to register
the resale by Purchaser of the Warrant Shares and to register the Common Shares
on a registration statement on Form S-3 under the Securities Act because the
Company's shares of Common Stock must be listed on a national exchange or
Nasdaq. However, the Company will use its commercially reasonable best efforts
to become eligible to register the Common Shares on a Form S-3 after the
Closing.
3.12 No General Solicitation. Neither the Company nor any distributor
participating on the Company's behalf in the transactions contemplated hereby
(if any) nor any person acting for the Company, or any such distributor, has
conducted any "general solicitation," as described in Rule 502(c) under
Regulation D, with respect to any of the Securities being offered hereby.
3.13 No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would prevent the parties hereto from
consummating the transactions contemplated hereby pursuant to an exemption from
the registration under the Securities Act pursuant to the provisions of
Regulation D. The transactions contemplated hereby are exempt from the
registration requirements of the Securities Act, assuming the accuracy of the
representations and warranties herein contained of each Purchaser.
3.14 No Brokers. The Company has taken no action which would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments by Purchaser relating to this Agreement or the transactions
contemplated hereby.
3.15 Intellectual Property. Each of the Company and its subsidiaries owns
or possesses adequate and enforceable rights to use all material patents, patent
applications, trademarks, trademark applications, trade names, service marks,
copyrights, copyright applications, licenses, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and proprietary
knowledge (collectively, "Intangibles") used or necessary for the conduct of its
business as now being conducted and as described in the Company's Annual Report
on Form 10-K and related amended 10-K/A for its most recently ended fiscal year.
Neither the Company nor any subsidiary of the Company infringes on or is in
conflict with any right of any other person with respect to any Intangibles nor
is there any claim of infringement made by a third party against or involving
the Company or any of its subsidiaries, which infringement, conflict or claim,
individually or in the aggregate, could reasonably be expected to result in an
unfavorable decision, ruling or finding which would have a Material Adverse
Effect.
3.16 Key Employees. No Key Employee, to the best of the knowledge of the
Company and its subsidiaries, is, or is now expected to be, in violation of any
material term of any employment contract, confidentiality, disclosure or
proprietary information agreement, non-competition agreement, or any other
contract or agreement or any restrictive covenant, and the continued employment
of each Key Employee does not subject the Company or any of its subsidiaries to
any liability with respect to any of the foregoing matters. No Key Employee has,
to the best of the knowledge of the Company and its subsidiaries, any intention
to terminate his employment with, or services to, the Company or any of its
subsidiaries. "Key Employee" means each of Xxxx X. Xxxxxxx, Chairman of the
Board and Chief Executive Officer, and Xxxxx X. Xxx, President.
3.17 Rights Plan. The Company has in effect a shareholders rights plan
which is a plan similar in nature of a "poison pill." However, the Company's
shareholder rights plan will not be triggered by the transactions contemplated
herein assuming there are no additional shares issued pursuant to Section 4.5
below.
ARTICLE IV
COVENANTS
4.1 Best Efforts. The parties shall use their best efforts to timely
satisfy each of the conditions described in Articles VI and VII of this
Agreement.
4.2 Securities Laws. The Company agrees to file a Form D with respect to
the Securities with the SEC as required under Regulation D and to provide a copy
thereof to each Purchaser within fifteen (15) days after the date of Closing.
The Company agrees to file a Form 8-K disclosing this Agreement and the
transactions contemplated hereby with the SEC within ten (10) business days
following the date of Closing. The Company shall, on or prior to the date of
Closing, take such action as is necessary to sell the Securities to each
Purchaser under applicable securities laws of the states of the United States,
and shall provide evidence of any such action so taken to each Purchaser on or
prior to the date of the Closing.
4.3 Reporting Status. So long as any Purchaser beneficially owns any of the
Securities, the Company shall timely file all reports required to be filed with
the SEC pursuant to the Exchange Act, and the Company shall not terminate its
status as an issuer required to file reports under the Exchange Act even if the
Exchange Act or the rules and regulations thereunder would permit such
termination.
4.4 Right of First Offer. From the date hereof until the day following the
one-year anniversary of the date of the Closing, the Company shall not issue or
sell, or agree to issue or sell any equity securities of the Company or any of
its subsidiaries (or any security convertible into or exercisable or
exchangeable, directly or indirectly, for equity securities of the Company or
any of its subsidiaries) with an aggregate value of less than ONE MILLION
DOLLARS ($1,000,000) ("Future Offerings") unless the Company shall have first
delivered to each Purchaser at least ten (10) business days prior to the closing
of such Future Offering, written notice describing the proposed Future Offering,
including the terms and conditions thereof, and providing each Purchaser and its
affiliates an option during the ten (10) business day period following delivery
of such notice to purchase up to the full amount of the securities being offered
in the Future Offering on the same terms as contemplated by such Future Offering
on a pro-rata basis to the Purchasers purchases hereunder (the "Right of First
Offer"). The foregoing Right of First Offer shall not apply to any transaction
involving issuances of securities in connection with a merger, consolidation,
joint venture, asset acquisition, license agreement, strategic alliance, grant
or exercise of options to or by employees, consultants or directors. In
addition, the Right of First Offer also shall not apply to the issuance of
securities upon exercise or conversion of the Company's options, warrants or
other convertible securities outstanding as of the date hereof, the grant of
additional options or warrants, or the issuance of additional securities, under
any employee, director or consulting stock option, stock purchase or restricted
stock plan of Company or any firm commitment underwritten public offering. This
Section 4.4 shall not limit the Company's obligations under Section 4.3 above.
4.5 Anti-Dilution Upon Subsequent Offering. In the event that upon the next
subsequent financing transaction (the "Subsequent Financing") pursuant to which
the Company offers Additional Securities, as hereinafter defined, yielding gross
cash proceeds in an amount of greater than ONE MILLION DOLLARS ($1,000,000), the
Company issues or sells such Additional Securities for a purchase price per
share of less than the purchase price per Common Share provided for herein, each
Purchaser shall be issued additional Common Shares equal to the number of Common
Shares that such Purchaser would have purchased if the purchase price per Common
Share purchased pursuant to this Agreement had been the same as the purchase
price per share of the Additional Securities issued pursuant to the Subsequent
Financing, reduced by the number of Common Shares issued to the Purchaser
pursuant to this Agreement. Additional Securities shall mean shares of the
Company's Common Stock or securities convertible or exchangeable into the
Company's Common Stock. The exercise price for Warrants issued pursuant to this
Agreement will be adjusted for such offering of Additional Securities as
provided in the Warrant. The Purchasers shall not be entitled to further
anti-dilution adjustments other than in connection with the Subsequent Financing
as provided herein and as provided in the Warrant.
4.6 Information. The Company agrees to make available the following reports
to each Purchaser until such Purchaser transfers, assigns or sells all of its
Securities in transactions in which the transferee is (unless such transferee is
an affiliate of the Company) not subject to securities law resale restrictions:
(a) within three (3) business days after the filing with the SEC, a copy of its
Annual Report on Form 10-K, its Quarterly Reports on Form 10-Q, any proxy
statements and any Current Reports on Form 8-K; and (b) within one (1) business
day after release, copies of all press releases issued by the Company or any of
its subsidiaries. The Company further agrees to promptly provide to any
Purchaser any information with respect to the Company, its properties, or its
business or Purchaser's investment as such Purchaser may reasonably request;
provided, however, that the Company shall not be required to give any Purchaser
any material nonpublic information. If any information requested by a Purchaser
from the Company contains material nonpublic information, the Company shall
inform the Purchaser in writing that the information requested contains material
nonpublic information and shall in no event provide such information to
Purchaser without the express written consent of such Purchaser after being so
informed.
4.7 Prospectus Delivery Requirement. Each Purchaser understands that the
Securities Act may require delivery of a prospectus relating to the Common Stock
in connection with any sale thereof pursuant to a registration statement under
the Securities Act covering the resale by such Purchaser of the Common Stock
being sold, and each Purchaser shall comply with the applicable prospectus
delivery requirements of the Securities Act in connection with any such sale.
4.8 Corporate Existence. So long as any Purchaser beneficially owns any
Warrants or Common Stock, the Company shall maintain its corporate existence,
except in the event of a merger, consolidation or sale of all or substantially
all of the Company's assets, as long as the surviving or successor entity in
such transaction assumes the Company's obligations hereunder and under the
agreements and instruments entered into in connection herewith.
4.9 Hedging Transactions. No Purchaser has an existing short position with
respect to the Common Shares. Each Purchaser agrees not to, directly or
indirectly, enter into any short sales with respect to the Common Shares prior
to the date on which such Purchaser is entitled to sell, transfer the number of
shares of Common Stock as to which such Purchaser proposes to establish a short
position. This Section 4.9 shall not prohibit Purchaser from at any time
entering into options contracts with respect to the Common Shares, including
puts and calls including delivering Common Stock in satisfaction of any
exercised options.
4.10 Use of Proceeds. The Company will use the proceeds of the sale of the
Securities for working capital or such other purposes as management or the
Company's Board of Directors shall determine or is required as repayment of debt
under the terms of the Contract Modification and Termination Agreement dated
March 5, 2002 entered into with Pharmacia Corporation.
ARTICLE V
LEGEND REMOVAL, TRANSFER, CERTAIN SALES, ADDITIONAL SHARES
5.1 Removal of Legend. The Legend shall be removed and the Company shall
issue a certificate without such Legend to the holder of any Security upon which
it is stamped, and a certificate for a security shall be originally issued
without the Legend, if, (a) the sale of such Security is registered under the
Securities Act, (b) such holder provides the Company with an opinion of counsel,
in form, substance and scope customary for opinions of counsel in comparable
transactions and reasonably satisfactory to the Company and its counsel (the
reasonable cost of which shall be borne by the Company if, after one (1) year,
neither an effective registration statement under the Securities Act or Rule 144
is available in connection with such sale) to the effect that a public sale or
transfer of such Security may be made without registration under the Securities
Act pursuant to an exemption from such registration requirements or (c) such
Security can be sold pursuant to Rule 144 and the holder provides the Company
with reasonable assurances that the Security can be so sold without restriction
or (d) such Security can be sold pursuant to Rule 144(k). Each Purchaser agrees
to sell all Securities, including those represented by a certificate(s) from
which the Legend has been removed, or which were originally issued without the
Legend, pursuant to an effective registration statement, in accordance with the
manner of distribution described in such registration statement and to deliver a
prospectus in connection with such sale, or in compliance with an exemption from
the registration requirements of the Securities Act. In the event the Legend is
removed from any Security or any Security is issued without the Legend and the
Security is to be disposed of other than pursuant to the registration statement
or pursuant to Rule 144, then prior to, and as a condition to, such disposition
such Security shall be relegended as provided herein in connection with any
disposition if the subsequent transfer thereof would be restricted under the
Securities Act. Also, in the event the Legend is removed from any Security or
any Security is issued without the Legend and thereafter the effectiveness of a
registration statement covering the resale of such Security is suspended or the
Company determines that a supplement or amendment thereto is required by
applicable securities laws, then upon reasonable advance notice to Purchaser
holding such Security, the Company may require that the Legend be placed on any
such Security that cannot then be sold pursuant to an effective registration
statement or Rule 144 or with respect to which the opinion referred to in clause
(b) next above has not been rendered, which Legend shall be removed when such
Security may be sold pursuant to an effective registration statement or Rule 144
or such holder provides the opinion with respect thereto described in clause (b)
next above.
5.2 Transfer Agent Instructions. The Company shall instruct its transfer
agent to issue certificates, registered in the name of each Purchaser or its
nominee, for the Common Shares and for the Warrant Shares in such amounts
determined in accordance with the terms of the Warrants. Such certificates shall
bear the Legend only to the extent provided by Section 5.1 above. The Company
covenants that no instruction other than such instructions referred to in this
Article V, and stop transfer instructions to give effect to Section 2.6 hereof
in the case of the Common Shares and Warrant Shares prior to registration of the
Common Shares and Warrant Shares under the Securities Act, will be given by the
Company to its transfer agent and that the Securities shall otherwise be freely
transferable on the books and records of the Company. Nothing in this Section
shall affect in any way each Purchaser's obligations and agreement set forth in
Section 5.1 hereof to resell the Securities pursuant to an effective
registration statement and to deliver a prospectus in connection with such sale
or in compliance with an exemption from the registration requirements of
applicable securities laws. If (a) a Purchaser provides the Company with an
opinion of counsel, which opinion of counsel shall be in form, substance and
scope customary for opinions of counsel in comparable transactions and
reasonably satisfactory to the Company and its counsel (the reasonable cost of
which shall be borne by the Company if, after one (1) year, neither an effective
registration statement under the Securities Act or Rule 144 is available in
connection with such sale), to the effect that the Securities to be sold or
transferred may be sold or transferred pursuant to an exemption from
registration or (b) a Purchaser transfers Securities to an affiliate which is an
accredited investor (within the meaning of Regulation D under the Securities
Act) and which delivers to the Company in written form the same representations,
warranties and covenants made by Purchaser hereunder or pursuant to Rule 144,
the Company shall permit the transfer, and, in the case of the Common Shares and
Warrant Shares, promptly instruct its transfer agent to issue one or more
certificates in such name and in such denomination as specified by such
Purchaser. The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to a Purchaser by vitiating the intent and
purpose of the transaction contemplated hereby. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under this
Article V will be inadequate and agrees, in the event of a breach or threatened
breach by the Company of the provisions of this Article V, that a Purchaser
shall be entitled, in addition to all other available remedies, to an injunction
restraining any breach and requiring immediate issuance and transfer, without
the necessity of showing economic loss and without any bond or other security
being required.
ARTICLE VI
CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
6.1 Conditions to the Company's Obligation to Sell. The obligation of the
Company hereunder to issue and sell the Common Shares and Warrants to a
Purchaser at the Closing is subject to the satisfaction, as of the date of the
Closing and with respect to such Purchaser, of each of the following conditions
thereto, provided that these conditions are for the Company's sole benefit and
may be waived by the Company at any time in its sole discretion:
(i) Such Purchaser shall have executed and delivered the signature page to
this Agreement and the Registration Rights Agreement;
(ii) Such Purchaser shall have wired its Purchase Price to the account
designated by the Company.
(iii)The representations and warranties of such Purchaser shall be true
and correct in all material respects as of the date when made and as
of the Closing as though made at that time (except for representations
and warranties that speak as of a specific date), and such Purchaser
shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the
applicable Purchaser at or prior to the Closing.
(iv) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction or
any self-regulatory organization having authority over the matters
contemplated hereby which restricts or prohibits the consummation of
any of the transactions contemplated by this Agreement.
ARTICLE VII
CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE
7.1 The obligation of each Purchaser hereunder to purchase the Common
Shares and Warrants to be purchased by it on the date of the Closing is subject
to the satisfaction of each of the following conditions, provided that these
conditions are for each Purchaser's sole benefit and may be waived by such
Purchaser at any time in such Purchaser's sole discretion:
(i) The Company shall have executed and delivered the signature page to
this Agreement and the Registration Rights Agreement.
(ii) The Company shall have delivered to the Purchaser's counsel duly
issued certificates for the Common Shares being so purchased by
Purchaser and Warrants being issued to such Purchaser at the Closing.
(iii)The representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of
the Closing as though made at that time and the Company shall have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to
the Closing. Purchaser shall have received a certificate, executed by
the Chief Executive Officer or Chief Financial Officer of the Company,
dated as of the Closing to the foregoing effect.
(iv) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction or
any self-regulatory organization having authority over the matters
contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
(v) Purchaser shall have received the officer's certificate described in
Section 3.3, dated as of the Closing.
(vi) Purchaser shall have received the legal opinion from the Company's
counsel in the form attached hereto as Exhibit C.
ARTICLE VIII
GOVERNING LAW; MISCELLANEOUS
8.1 Governing Law: Jurisdiction. 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 Purchaser irrevocably waives the
defense of an inconvenient forum to the maintenance of such suit or proceeding
in such forum. The Company and each Purchaser further agrees that service of
process upon the Company or such Purchaser, as applicable, mailed by the first
class mail in accordance with Section 8.6 shall be deemed in every respect
effective service of process upon the Company or such Purchaser in any suit or
proceeding arising hereunder. Nothing herein shall affect Purchaser's right to
serve process in any other manner permitted by law. The parties hereto agree
that a final non-appealable judgment in any such suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on such judgment
or in any other lawful manner. The parties hereto irrevocably waive any right to
a trial by jury under applicable law.
8.2 Counterparts. This Agreement may be executed in two or more
counterparts, including, without limitation, by facsimile transmission, all of
which counterparts shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered
to the other party. In the event any signature page is delivered by facsimile
transmission, the party using such means of delivery shall cause additional
original executed signature pages to be delivered to the other parties as soon
as practicable thereafter.
8.3 Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
8.4 Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
8.5 Entire Agreement: Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the maters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor any Purchaser makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived other than by an instrument in
writing signed by the party to be charged with enforcement and no provision of
this Agreement may be amended other than by an instrument in writing signed by
the Company and each Purchaser.
8.6 Notice. Any notice herein required or permitted to be given shall be in
writing and may be personally served or delivered by nationally-recognized
overnight courier or by facsimile machine confirmed telecopy, and shall be
deemed delivered at the time and date of receipt (which shall include telephone
line facsimile transmission). The addresses for such communications shall be:
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
If to any other Purchaser, to such address set forth under such Purchaser's name
on the signature page hereto executed by such Purchaser. Each party shall
provide notice to the other parties of any change in address.
8.7 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns. Neither the
Company nor any Purchaser shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, each Purchaser may assign its rights and
obligations hereunder to any of its "affiliates," as that term is defined under
the Securities Act, without the consent of the Company so long as such affiliate
is an accredited investor (within the meaning of Regulation D under the
Securities Act) and agrees in writing to be bound by this Agreement. This
provision shall not limit each Purchaser's right to transfer the Securities
pursuant to the terms of this Agreement or to assign such Purchaser's rights
hereunder to any such transferee. In that regard, if Purchaser sells all or part
of its Common Shares to someone that acquires the shares subject to restrictions
on transferability (other than restrictions, if any, arising out of the
transferee's status as an affiliate of the Company), Purchaser shall be
permitted to assign its rights hereunder, in whole or in part, to such
transferee.
8.8 Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
8.9 Survival. The representations and warranties of the Company and the
agreements and covenants shall survive the closing hereunder notwithstanding any
due diligence investigation conducted by or on behalf of Purchaser. The Company
agrees to indemnify and hold harmless each Purchaser and each of each
Purchaser's officers, directors, employees, partners, agents and affiliates for
loss or damage arising as a result of or related to any breach or alleged breach
by the Company of any of its representations or covenants set forth herein,
including advancement of expenses as they are incurred. The representations and
warranties of the Purchasers shall survive the Closing hereunder and each
Purchaser shall indemnify and hold harmless the Company and each of its
officers, directors, employees, partners, agents and affiliates for any loss or
damage arising as a result of the breach of such Purchaser's representations and
warranties.
8.10 Further Assurances. 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.
8.11 Expenses. The Company will reimburse the Purchasers collectively for
up to TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500) for actual documented legal
expenses, consulting expenses, due diligence expenses and travel expenses.
8.12 Remedies. No provision of this Agreement providing for any remedy to a
Purchaser shall limit any remedy which would otherwise be available to such
Purchaser at law or in equity. Nothing in this Agreement shall limit any rights
a Purchaser may have with any applicable federal or state securities laws with
respect to the investment contemplated hereby. The Company acknowledges that a
breach by it of its obligations hereunder will cause irreparable harm to a
Purchaser. Accordingly, the Company acknowledges that the remedy at law for a
material breach of its obligations under this Agreement will be inadequate and
agrees, in the event of a breach or threatened breach by the Company of the
provisions of this Agreement, that a Purchaser shall be entitled, in addition to
all other available remedies, to an injunction restraining any breach and
requiring immediate compliance, without the necessity of showing economic loss
and without any bond or other security being required.
8.13 Final Agreement. This Agreement, when executed by the parties hereto,
shall constitute the final agreement between the parties and upon such execution
Purchasers and the Company accept the terms hereof and have no cause of action
against each other for prior negotiations preceding the execution of this
Agreement.
8.14 Facsmile Signatures/Counterparts. The Closing of this transaction will
occur through the exchange of signature pages by facsimile and fully executed
copies shall be subsequently exchanged.
IN WITNESS WHEREOF, the undersigned Purchasers and the Company have
caused this 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
PURCHASERS:
GORUMNA, LTD. (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
PLEYEL HOLDINGS, LIMITED
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
BIG CAT CAPITAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
PURCHASERS (continued):
ACACIAS FINANCIAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
ALERT INVESTMENTS, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
CAMELFORD HOLDINGS, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
DANUBE FINANCIAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
PURCHASERS (continued):
DELICE FINANCIAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
IRIS FINANCIAL, LIMITED (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
PEARL WAVES, INC. (BVI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Aggregate Number of Common Shares: 500,000
Number of Warrants: 250,000
Exhibit A
To
Securities Purchase Agreement
STOCK PURCHASE WARRANT
Exhibit B
To
Securities Purchase Agreement
REGISTRATION RIGHTS AGREEMENT
Exhibit C
to
Securities Purchase Agreement
LEGAL OPINION OF COMPANY'S COUNSEL
List of Schedules
to
Securities Purchase Agreement
Schedule 1 - List of Investors
Schedule 3.2 - Authorization; Enforcement
Schedule 3.3 - Capitalization
Schedule 3.5 - Conflicts
Schedule 3.6 - SEC Documents
Schedule 3.7 - Absence of Certain Changes
Schedule 3.8 - Litigation
SCHEDULE 1
TO SECURITIES PURCHASE AGREEMENT
LIST OF INVESTORS
Investor Shares of Common Stock Warrant Shares
Gorumna, Ltd. (BVI) 500,000 250,000
Pleyel Holdings, Limited (BVI) 500,000 250,000
Big Cat Capital, Limited (BVI) 500,000 250,000
Acacias Financial, Limited (BVI) 500,000 250,000
Alert Investments, Limited (BVI) 500,000 250,000
Camelford Holdings, Limited (BVI) 500,000 250,000
Danube Financial, Limited (BVI) 500,000 250,000
Delice Financial, Limited (BVI) 500,000 250,000
Iris Financial, Limited (BVI) 500,000 250,000
Pearl Waves, Inc. (BVI) 500,000 250,000
SCHEDULE 3.2
TO
SECURITIES PURCHASE AGREEMENT
AUTHORIZATION; ENFORCEMENT
SCHEDULE 3.3
TO
SECURITIES PURCHASE AGREEMENT
CAPITALIZATION
Number of Shares
Authorized Stock:
Preferred Stock 20,000,000
Common Stock 50,000,000
Outstanding:
Preferred Stock 0
Common Stock 18,877,818
Stock Options:
Reserved 8,000,000
Issued ($9.99 avg exercise price) 6,520,904
Exercisable (vested; $15.34 avg exercise price) 3,418,808
Warrants:
Issued ($12.99 avg exercise price) 1,468,750
Other Convertible Instruments:
Reserved None
SCHEDULE 3.5
TO
SECURITIES PURCHASE AGREEMENT
CONFLICTS
SCHEDULE 3.6
TO
SECURITIES PURCHASE AGREEMENT
SEC DOCUMENTS
|X| Form 8-K (Clinical data press release) filed January 16, 2002
|X| Form 8-K (Notification of delisting by Nasdaq) filed March 11, 2002
|X| Form 8-K (Restructuring of Pharmacia Agreements) filed March 12, 2002
|X| Form 10-K (Annual Report) filed March 31, 2002
|X| Form S-3/A (Amended Shelf Registration) filed April 9, 2002
|X| Def 14A (Proxy Statement) filed April 30, 2002
|X| Form 00-X (Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx) filed May 15, 2002
|X| Form 10-K/A (Amended Annual Report) filed May 31, 2002
|X| Form S-3/A (Amended Shelf Registration) filed May 31, 2002
|X| Form 11-K (ESOP Plan Annual Financial Statements) filed June 27, 2002
|X| Form 8-K (Delisting notification by Nasdaq and move to OTC board)
filed July 12, 2002
|X| Form 00-X (Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx) filed August 14, 2002
SCHEDULE 3.7
TO
SECURITIES PURCHASE AGREEMENT
ABSENCE OF CERTAIN CHANGES
SCHEDULE 3.8
TO
SECURITIES PURCHASE AGREEMENT
LITIGATION
