EXHIBIT 10.1
CONVERTIBLE DEBT AND WARRANT PURCHASE AGREEMENT
THIS CONVERTIBLE DEBT AND WARRANT PURCHASE AGREEMENT (the "Agreement") is
entered into as of December 19, 2002, by and between MIRAVANT MEDICAL
TECHNOLOGIES, a Delaware corporation (the "Company"), with headquarters located
at 000 Xxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000, and PRINCESS FINANCE
LIMITED, a BVI company (the "Purchaser").
RECITALS
A. The parties hereto have agreed to a Letter of Intent entitled
"Summary of Key Terms - Convertible Debt Line of Credit with Warrants" (the
"Letter of Intent");
B. The Company and the Purchaser 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");
C. The Purchaser desires to (a) purchase, upon the terms and conditions
stated in this Agreement, up to TWELVE MILLION DOLLARS ($12,000,000) of the
Company's currently unsecured Convertible Promissory Notes in the form attached
hereto as Exhibit A (collectively, the "Notes"); and (b) purchase, upon the
terms and conditions stated in this Agreement, the warrants, in the form
attached hereto as Exhibit B (Note Warrant) and Exhibit E (Loan Origination
Warrant, collectively, "Warrants"), 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
issuable on the conversion of the Notes, including any Common Shares issued for
interest payments under the Notes, are referred to herein as the "Conversion
Shares." The Notes, the Warrants, the Warrant Shares and the Conversion Shares
are collectively referred to herein as the "Securities"; and
D. 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 C (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 the Purchaser hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF NOTES AND WARRANTS
1.1 Purchase of the Notes and Warrants. Subject to the terms and
conditions of this Agreement, the issuance, sale and purchase of the Notes (and
related Note Warrants at the rate of one-fourth (1/4th) Warrant Share for each
$1.00 borrowed) shall be consummated in multiple closings (collectively, the
"Closings") for up to TWELVE MILLION DOLLARS ($12,000,000) as provided herein.
The Purchaser is entitled to purchase up to ONE MILLION DOLLARS ($1,000,000) of
the Notes per month (plus amounts carried over from prior months) (the "Monthly
Amount") commencing December 19, 2002. In order to use this facility, the
Company shall deliver to the Purchaser, any time before the end of the preceding
month, a Borrowing Request in the form attached hereto as Exhibit F. The
procedure shall be waived for first month's draws hereunder. The Purchaser shall
also receive a Note Warrant for a one-quarter (1/4) share of Common Stock for
each dollar to be borrowed, with respect to each monthly Note purchased. If in
any month the Company does not borrow the full Monthly Amount, then any unused
borrowing may be carried forward to subsequent months' Borrowing Requests. Upon
receipt of the funds, the Company will deliver the duly executed Note in the
form attached hereto as Exhibit A together with the Note Warrant. The Note will
be repaid in accordance with the terms of the Convertible Promissory Note and
shall bear interest on the same terms as contained therein. The funds will be
delivered by Purchaser no later than the fifteenth (15th) of the month following
the Borrowing Request. The last Borrowing Request will be delivered no later
than October 31, 2003.
1.2 Form of Payment. The Purchaser shall pay the aggregate Purchase
Price for the Notes and Warrants being purchased by the Purchaser by wire
transfer to the account designated by the Company.
1.3 Initial 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
initial issuance, sale and purchase of the Notes and Warrants pursuant to this
Agreement shall be at 10:00 a.m. California time, on December 19, 2002 ("Initial
Closing"). Thereafter, the Closings will occur monthly at the option of the
Company.
1.4 Drawdown Fee. The Purchaser shall withhold a drawdown fee equal to
Three Percent (3%) of each amount drawn.
1.5 Purchaser's Termination of Obligations. The Purchaser may terminate
its obligations hereunder at any time upon ten (10) days' prior written notice
if: (i) the Company has not filed a new drug application for its AMD Clinical
Trials by March 31, 2003, or (ii) the filing has been rejected by the Federal
Drug Administration. The Purchaser may also terminate its obligation at any time
if, in the Purchaser's reasonable judgment, the operations of the Company are
not meeting their business objectives as expected.
1.6 Letter of Intent. The Letter of Intent is hereby superceded and
terminated.
ARTICLE II
PURCHASER'S REPRESENTATIONS AND
WARRANTIES
The Purchaser represents and warrants to the Company, as of the date
hereof and as of the Closing, as set forth in this Article II. The Purchaser
makes no 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 the
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 Securities for
Purchaser's own account for investment only and not with a view toward or in
connection with the public sale or distribution thereof. The Purchaser will not,
directly or indirectly, offer, sell, pledge or otherwise transfer the Notes 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 Securities
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 Notes 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, June 30,
2002 and September 30, 2002 and filed with the SEC (such documents, together
with any periodic report filed hereafter, collectively, the "SEC Documents") as
well as any Press Release through the Initial Closing. 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 November 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. Prior to any transfer (other than a
routine transfer pursuant to Rule 144), the Purchaser shall deliver to the
Company an opinion of counsel, in form and substance reasonably acceptable to
the Purchaser, that the shares are transferable without prior registration and
any transferee shall agree to restrictions on transfers substantially in the
form provided pursuant to this Section 2.6. The Purchaser consents to the
Company making a notation on its records and giving instructions to any transfer
agent in order to implement the restrictions on transfer established in this
Section 2.6.
2.7 Legends. Purchaser understands that, subject to Article V hereof,
the certificates for the Securities, until such time as the Securities 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 Securities 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.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY
IN ACCORDANCE WITH THE TERMS OF A CONVERTIBLE DEBT AND WARRANT PURCHASE
AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY, AND MAY BE OBTAINED BY HOLDER WITHOUT CHARGE.
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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the 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 Securities in accordance with the terms hereof and thereof
and the terms of the Securities 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 all of the Securities) 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 Securities have been duly
executed and delivered by the Company; and (d) this Agreement, the Registration
Rights Agreement, the Securities 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 September
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 Conversion 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, except as provided in the Securities Purchase Agreement dated
August 27, 2002, 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 Securities are duly authorized and reserved
for issuance and 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 Notes 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 Securities 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 the 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.
3.7 Absence of Certain Changes. Since September 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 and the three
(3) Press Releases issued by the Company after September 30, 2002.
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 (other than as disclosed in the SEC
Documents) 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 the 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. As of the date of this Agreement, the Company is
not currently eligible to register the resale by Purchaser of the Warrant Shares
and the Conversion 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 Warrant Shares and
the Conversion Shares on a Form S-3 after the initial 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 the 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 4.4
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 the 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 the
Purchaser under applicable securities laws of the states of the United States,
and shall provide evidence of any such action so taken to the 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 Anti-Dilution Upon Subsequent Offering. In the event that upon a
subsequent financing transaction pursuant to which the Company offers Additional
Securities to third parties, as hereinafter defined, the Company issues or sells
such additional securities for a purchase price per share of less than the
Conversion Price of the Notes (as defined in Exhibit A) and the Exercise Price
of the Warrants (as defined in Exhibits B and E), the Purchaser shall adjust the
Conversion Price of the Notes and/or the Exercise Price of the Warrants to such
lower price. Additional Securities shall mean shares of the Company's Common
Stock or securities convertible or exchangeable into the Company's Common Stock.
This provision 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.
4.5 Information. The Company agrees to make available the following
reports to the Purchaser until the 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 the 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 the Purchaser after being so
informed.
4.6 Prospectus Delivery Requirement. The 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 the Purchaser of the Warrant Shares or
Conversion Shares being sold, and the Purchaser shall comply with the applicable
prospectus delivery requirements of the Securities Act in connection with any
such sale.
4.7 Corporate Existence. So long as any Purchaser beneficially owns any
Securities, 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.
4.8 Hedging Transactions. The Purchaser has no existing short position
with respect to the Common Shares. The Purchaser agrees not to, directly or
indirectly, enter into any short sales with respect to the Common Shares prior
to the date on which the Purchaser is entitled to sell, transfer the number of
shares of Common Stock as to which the Purchaser proposes to establish a short
position. This Section 4.8 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.
4.9 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 (the "Pharmacia
Agreement").
4.10 Security Interest. Within ten (10) days of the entire repayment of
the debt to Pharmacia Corporation, in accordance with the Pharmacia Agreement,
the Company will grant to the Purchaser a Security Agreement in form and
substance acceptable to Purchaser (and its counsel) creating a first security
interest in the assets of the Company to secure the repayment of the Notes and
file an appropriate Form UCC-1 if the Notes are then outstanding. Company
warrants that it will not encumber its assets pending the creation of the
security interest.
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). The 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 the Purchaser or
its nominee, for the Securities in such amounts determined in accordance with
the terms of the Securities. 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 Securities
prior to registration of the Securities 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 the 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 Securities,
promptly instruct its transfer agent to issue one or more certificates in such
name and in such denomination as specified by the 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 the 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 Notes and Warrants to the Purchaser
at the Initial Closing, and each subsequent Closing, is subject to the
satisfaction, as of the date of any such Closing and with respect to the
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) The Purchaser shall have executed and delivered the
signature page to this Agreement and the Registration Rights Agreement;
(ii) The Purchaser shall have wired the Borrowing Request
amount, less the Drawdown Fee, to the account designated by the
Company.
(iii) The representations and warranties of the Purchaser
shall be true and correct in all material respects as of the date when
made and as of each Closing as though made at that time (except for
representations and warranties that speak as of a specific date), and
the 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 each 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 THE PURCHASER'S OBLIGATION TO PURCHASE
7.1 The obligation of the Purchaser hereunder to purchase the Notes and
the Warrants to be purchased by it on the date of each Closing is subject to the
satisfaction of each of the following conditions, provided that these conditions
are for the Purchaser's sole benefit and may be waived by the Purchaser at any
time in the Purchaser's sole discretion:
(i) The Company shall have executed and delivered the
signature page to this Agreement and the Registration Rights Agreement
for the Initial Closing or related signed Borrowing Request for each
Subsequent Closing.
(ii) The Company shall have delivered to the Purchaser's
counsel duly issued Notes being so purchased by Purchaser and Warrants
being issued to the 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 Initial Closing. Purchaser shall have received a certificate,
executed by the Chief Executive Officer or Chief Financial Officer of
the Company, dated as of the Initial 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 Initial Closing.
(vi) The Purchaser shall have received the legal opinion from
the Company's counsel in the form attached hereto as Exhibit D at the
Initial Closing.
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 the Purchaser irrevocably waives
the defense of an inconvenient forum to the maintenance of such suit or
proceeding in such forum. The Company and the Purchaser further agrees that
service of process upon the Company or the 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 the 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. The Letter of Intent is superceded by
this Agreement, and 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 the
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 the Purchaser:
--------------------
Princess Finance Company, a BVI company
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
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, the 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 the Purchaser's right to transfer the Securities
pursuant to the terms of this Agreement or to assign the 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 the Purchaser and each of the 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 Purchaser shall survive the Closing hereunder and the 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 the 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 Loan Origination Warrant and Legal Expenses. The Company will
issue the Loan Origination Warrant to Purchaser at the Initial Closing which
will be for Two Hundred Fifty Thousand (250,000) shares and will expire on
December 31, 2008, and will have an exercise price of FIFTY CENTS ($0.50) per
share. In addition, the Company will pay the Purchaser's actual documented legal
expenses not to exceed TWENTY FIVE THOUSAND DOLLARS ($25,000).
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 the
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 the Purchaser 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 Facsimile 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 Purchaser 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
PURCHASER:
PRINCESS FINANCE LIMITED,
a BVI company
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Exhibit A
To
Convertible Debt and Warrant Purchase Agreement
CONVERTIBLE PROMISSORY NOTE
Exhibit B
To
Convertible Debt and Warrant Purchase Agreement
NOTE PURCHASE WARRANT
Exhibit C
to
Convertible Debt and Warrant Purchase Agreement
REGISTRATION RIGHTS AGREEMENT
Exhibit D
to
Convertible Debt and Warrant Purchase Agreement
LEGAL OPINION
[TO COME]
Exhibit E
to
Convertible Debt and Warrant Purchase Agreement
LOAN ORIGINATION WARRANT
Exhibit F
to
Convertible Debt and Warrant Purchase Agreement
BORROWING REQUEST
TO: ____________________ (the "Purchaser")
DATE: ____________________
Miravant Medical Technologies (the "Company") hereby gives notice that
it requests to the Borrower on the fifteenth day of ____________, 200__ the sum
of $_____________. The Company will deliver the Convertible Promissory Note, in
the form attached as Exhibit A and the Note Warrant in the form attached as
Exhibit B, upon receipt of the funds.
Date: ______________ MIRAVANT MEDICAL TECHNOLOGIES
By:________________________________
Name:
Title:
List of Schedules
to
Convertible Debt and Warrant Purchase Agreement
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 3.2
TO
CONVERTIBLE DEBT AND WARRANT PURCHASE AGREEMENT
AUTHORIZATION; ENFORCEMENT
SCHEDULE 3.3
TO
CONVERTIBLE DEBT AND WARRANT PURCHASE AGREEMENT
CAPITALIZATION
Number of Shares
Authorized Stock:
Preferred Stock 20,000,000
Common Stock 50,000,000
Outstanding:
Preferred Stock 0
Common Stock 25,096,032(1)
Stock Options:
Reserved 8,000,000
Authorized or Issued ($4.16 avg exercise price) 5,017,026
Exercisable (vested; $6.16 avg exercise price) 1,880,196
Warrants:
Issued ($2.80 avg exercise price) 4,143,750
Other Convertible Instruments:
Reserved None
--------
(1) Includes restricted shares issued to employees in exchange for cancelled
employee options.
SCHEDULE 3.5
TO
CONVERTIBLE DEBT AND WARRANT PURCHASE AGREEMENT
CONFLICTS
SCHEDULE 3.6
TO
CONVERTIBLE DEBT AND WARRANT 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 8-K (regarding the sale of $2,500,000 unregistered Common Shares and
Warrants to a group of private investors filed September 3, 2002)
|X| Form 10-Q (Second Quarter Financial Statements) filed August 14, 2002
|X| Form 00-X (Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx) filed November 14, 2002
SCHEDULE 3.7
TO
CONVERTIBLE DEBT AND WARRANT PURCHASE AGREEMENT
ABSENCE OF CERTAIN CHANGES
SCHEDULE 3.8
TO
CONVERTIBLE DEBT AND WARRANT PURCHASE AGREEMENT
LITIGATION
