REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of o, 1999 (this "Agreement") by
and between Miravant Medical Technologies, a Delaware corporation (the
"Company"), and Pharmacia & Upjohn, Inc., a Delaware Corporation (collectively
with its Affiliates, the "Purchaser").
W I T N E S S E T H:
WHEREAS, in connection with the Equity Investment Agreement, of even date
herewith, between the Company and the Purchaser (the "Equity Investment
Agreement") and the Warrant Agreement, of even date herewith, between the
Company and the Purchaser (the "Warrant Agreement" and, together with the Equity
Investment Agreement, the "Purchase Agreements"), the Company has agreed, upon
the terms and subject to the conditions of said Purchase Agreements, to issue
and sell to the Purchaser shares of common stock of the Company, par value $.01
per share (the "Common Stock") and warrants to purchase Common Stock, the shares
of Common Stock and the shares of Common Stock issuable upon exercise of the
Warrants being collectively referred to herein as the "Securities"; and
WHEREAS, to induce the Purchaser to execute and deliver the Purchase
Agreements, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "Securities
Act"), and applicable state securities laws with respect to the Securities.
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
hereby agree as follows:
ARTICLE I
Definitions
Section I.1. Definitions. Capitalized terms used herein shall have the
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Affiliate" means any other Person directly or indirectly controlling,
controlled by, or under common control with, that Person.
"Commission" means the Securities and Exchange Commission.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
"Qualified Public Offering" means an underwritten registered public
offering of equity securities of the Company, which offering yields minimum
gross proceeds of US$20,000,000.
"1933 Act" means the Securities Act of 1933, as amended and as it may be
amended from time to time, including the rules and regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended and as it
may be amended from time to time, including the rules and regulations
thereunder.
ARTICLE II
Registration Rights
Section II.1. Demand Rights. (a) Upon written demand of holders of a
majority of the Securities, the Company shall prepare and file a registration
statement under the 1933 Act covering an offering of such number of Securities
as shall have been requested by such holder(s) in such demand, and shall use its
diligent efforts to cause such registration statement to become effective, all
in accordance with the provisions of this Agreement; provided, that if the
Company's Board of Directors determines in good faith that it would be seriously
detrimental to the Company to file such a registration statement at the time of
such demand, the Company shall have the right to defer filing such registration
statement for 120 days. The Company shall only be required to cause up to three
(3) registration statements to become effective under this Section 2.01.
(b) Whenever the Company shall have received a demand pursuant to this
Section 2.01 to effect the registration of any Securities, the Company shall
promptly give written notice of such proposed registration to all other holders
of Securities. Any such holder may, within 30 days after receipt of such notice,
request in writing that all of such holder's Securities, or any portion thereof
designated by such holder, be included in the offering.
(c) The Company shall proceed as expeditiously as possible after receipt of
a demand pursuant to this Section 2.01 to file a registration statement and use
its best efforts to effect, within 120 days after the giving of such written
demand (or, in the case of a demand made within 60 days prior to the end of the
Company's then fiscal year, within 210 days after the giving of such written
demand) the registration of an offering under the 1933 Act. Such offering shall
include:
(i) the Securities specified in the demand given pursuant to Section
2.01(a); and
(ii) all other Securities that the holders thereof have requested be
included in the offering pursuant to Section 2.01(b);all of the extent required
to permit the holders of the Securities to dispose of such Securities in
compliance with applicable law. Unless otherwise recommended by the managing
underwriter to facilitate such offering, the Company shall have the right to
include in such offering authorized but unissued shares of its Common Stock and
shares of its Common Stock held in its treasury that together constitute no more
than 20% of the aggregate number of Securities to be offered. No other
outstanding securities of the Company shall be included in such registration
statement unless, and then only to the extent that, in the opinion of the
representative of the underwriters participating in the sale and distribution of
the shares of Common Stock covered by such registration statement, such other
outstanding securities may be included in such registration statement and sold
without adversely affecting the sale of Securities otherwise included therein.
The Purchaser shall select the representative, if any, of the underwriters to be
engaged in connection with any such registration, subject to the consent of the
Company, which shall not unreasonably be withheld or delayed.
Section II.2. Piggyback Rights. (a) If at any time the Company shall
propose to register any of its shares for sale or disposition, for its own
account for cash under the 1933 Act in a Qualified Public Offering (including,
for this purpose, a registration effected by the Company for stockholders other
than Purchaser) and if all of the Securities have not been registered under
Section 2.01 above, the Company shall:
(i) Promptly give to the Purchaser at least thirty (30) days'
written notice prior to the filing thereof (which shall include, if
then determined, the proposed date on which the registration statement
is to be filed, the proposed price and registration price per share,
the number of shares proposed to be included in such registration, the
identity of any proposed selling stockholders and a list of the
jurisdictions in which the Company intends to attempt to qualify such
securities under the applicable blue sky or other state securities
laws); and
(ii) Include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, a portion of the Securities which are
specified in a written request, or requests, made by the Purchaser
within ten (10) days after receipt of such written notice from the
Company by the Purchaser.
(b) The rights of the Purchaser to registration pursuant to this section
shall be conditioned upon the Purchaser's participation in any underwriting
relating to the Company's registered public offering. The Purchaser shall
(together with the Company) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected by the Company. The Company
will use its best efforts to include the Purchaser's Securities in the Qualified
Public Offering. Notwithstanding any provision of this section, if the
underwriter, in its sole discretion, determines that marketing factors require a
limitation of the number of securities to be underwritten, or that the Qualified
Public Offering be limited to shares offered by the Company only, the
underwriter may exclude some or all of the Purchaser's shares for which the
Purchaser seeks registration from inclusion in the registration and
underwriting, which reduction shall be pro rata among the Purchaser and any
other stockholder whose shares are sought to be included in the public offering.
Section II.3. Termination of Registration Rights. The Company shall have no
obligation under Section 2.01 or 2.02 to register any Securities if the Company
shall deliver to the holders requesting such registration an opinion of counsel
reasonably satisfactory to such holders and their counsel to the effect that the
proposed sale or disposition for which registration was requested does not
require registration under the 0000 Xxx. The Company hereby agrees to indemnify
the holders of Securities, and each of them, against, and to hold them harmless
from, all damages, losses, liabilities (including liability for rescission),
costs and expenses that they may incur under the 1933 Act or otherwise by reason
of their proceeding in accordance with such opinion of counsel.
Section II.4. Actions to be Taken by the Company. If and whenever the
Company is obligated by the provisions of this Agreement to effect the
registration of any offering of Securities under the 1933 Act, as expeditiously
as possible the Company will, or will use its best efforts to, as the case may
be:
(a) Prepare and file with the Commission a registration statement with
respect to such Securities and cause such registration statement to become
effective; provided, however, that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall furnish
to the holders of the Securities covered by such registration statement, their
counsel and the representative of the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be subject to the review of
such holders, their counsel and the representative of the underwriters, if any,
and the Company shall not file any registration statement or prospectus or any
amendments or supplements thereto to which the holders of a majority of the
Securities covered by such registration statement, their counsel, or the
representative of the underwriters, if any, shall reasonably object on a timely
basis.
(b) Prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective until the earlier
of the sale of all Securities covered thereby or the expiration of a period of
270 days after its effective date, and comply with the provisions of the 1933
Act with respect to the disposition of all Securities covered by such
registration statement; provided, however, that if maintaining the effectiveness
of the registration statement would require the filing of a post-effective
amendment including new financial statements (other than financial statements
which the Company would be required to include in a current report on Form 10-Q
under Section 13 or 15(d) of the 0000 Xxx) the Company shall be obligated
hereunder to use its best efforts to maintain the effectiveness of the
registration statement for 90 days. In the event that any Securities included in
a registration statement subject to, or required by, this Agreement remain
unsold at the end of the period during which the Company is obligated to use its
best efforts to maintain the effectiveness of such registration statement, the
Company, if and when a further amendment or supplement would be required to
comply with Section 10 of the 1933 Act, may file a post-effective amendment to
the registration statement for the purpose of removing such shares from
registered status.
(c) Furnish to holders for whom Securities are registered or are to be
registered so many copies of a prospectus, including a preliminary prospectus,
in conformity with the requirements of the 1933 Act, and such other documents,
as such holders may reasonably request.
(d) Register or qualify the Securities covered by such registration
statement under such other securities or blue sky laws of such jurisdictions as
the holders for whom Securities are registered shall request, and do any and all
other acts and things that may be reasonably necessary or advisable to enable
such holders to consummate the disposition in such jurisdictions of such
Securities; provided, however, that the Company shall not be obligated, by
reason thereof, to qualify as a foreign corporation or file any general consent
to service of process under the laws of any such jurisdiction or subject itself
to taxation as doing business in any such jurisdiction.
(e) Notify the holders for whom Securities are registered or are to be
registered and their counsel promptly after the Company shall receive notice
that any registration statement, supplement or amendment has become effective,
any registration statement is required to be amended or supplemented, or any
stop order with respect thereto has been issued.
(f) Enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) and take
all such other actions in connection therewith (including those reasonably
requested by the representative of the underwriters or the holders of a majority
of the Securities subject to the registration statement) in order to expedite or
facilitate the disposition of the Securities and in such connection, (i) make
such representations and warranties to the underwriters with respect to the
business of the Company and its subsidiaries, the registration statement, the
prospectus and the documents, if any, incorporated or deemed to be incorporated
by reference in the registration statement, in each case in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
secondary offerings and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof, which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
representative of the underwriters, addressed to each of the underwriters,
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
underwriters, including without limitation, the matters referred to in clause
(i) above; (iii) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data is or is required to be included in the registration statement)
addressed to each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with underwritten offerings; and (iv) deliver such
documents and certificates as may be requested by the representative of the
underwriters to evidence the continued validity of the representations and
warranties made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company. The above shall be done at each closing under such
underwriting or similar agreement, or as and to the extent required thereunder.
(g) Make available for inspection by any underwriter and any attorney or
accountant retained by such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and its
Subsidiaries, and cause the officers, directors and employees of the Company and
its Subsidiaries to supply all information reasonably requested by any such
underwriter, attorney or accountant in connection with such registration
statement; provided, however, that any records, information or documents that
are designated by the Company in writing as confidential shall be kept
confidential by such Persons unless (i) disclosure of such records, information
or documents is required by court or administrative order, or (ii) disclosure of
such records, information or documents, in the opinion of counsel to such
Person, is required by law (including, without limitation, pursuant to the
requirements of the 0000 Xxx) or (iii) such records, information or documents
are in the public domain or otherwise publicly available.
Section II.5. Costs and Expenses. The costs and expenses (other than
underwriting discounts or commissions and such fees for counsel, printing,
registration and other fees as state securities officials may require that the
holders of Securities pay) of all registrations and qualifications under the
1933 Act, and of all other actions that the Company is required to take or
effect pursuant to this Agreement, shall be paid by the Company (including,
without limitation, all registration and filing fees, printing expenses, costs
of special audits incident to or required by any such registration, fees and
disbursements of counsel for the Company and up to $20,000 of fees and
disbursements of one special counsel acting for the holders of Securities being
included in any registration) except that all such expenses in connection with
any amendment or supplement to the registration statement or the prospectus used
in connection therewith required to be filed more than 270 days after the date
on which such registration statement becomes effective under the 1933 Act
because any holder has not effected the disposition of Securities covered by
such registration statement shall be borne pro rata by such holder or holders
and provided that all such costs and expenses shall be borne pro rata by the
Company and all holders if required by any state securities commissioner as a
condition to qualification of securities in such jurisdiction.
Section II.6. Indemnification. In the event of any registration under the
1933 Act of any offering of Securities, the Company hereby agrees to indemnify
and hold harmless each holder of Securities and each other Person, if any, who
controls such holder (within the meaning of the 0000 Xxx) and each other Person
(including each underwriter, and each other Person, if any, who controls such
underwriter) who participates in the offering of such Securities against any
losses, claims, damages or liabilities ("Losses"), joint or several, to which
such holder or controlling Person or participating Person may become subject
under the 1933 Act or otherwise, insofar as such Losses (or proceedings in
respect thereof) arise out of or are based upon (a) any untrue statement or
alleged untrue statement of any material fact contained, on the effective date
thereof, in any registration statement under which Securities were registered
under the 1933 Act, in any preliminary prospectus or final prospectus contained
therein, or in any amendment or supplement thereto, (b) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (c) any violation or
alleged violation by the Company of the 1933 Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the 1933 Act, the
1934 Act or any state securities law, and will reimburse such holder and each
such controlling Person or participating Person for any legal or other expenses
reasonably incurred by such holder or such controlling Person or participating
Person in connection with investigating or defending any such Loss; provided
that the Company will not be liable in any such case to the extent that any such
Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
such preliminary or final prospectus or such amendment or supplement in reliance
upon and in conformity with written information furnished by an instrument duly
executed by such holder or such controlling or participating Person, as the case
may be, specifically for use in the preparation thereof. The Company shall also
indemnify underwriters participating in the distribution, their officers,
directors, agents and employees and each Person who controls such Persons
(within the meaning of Section 15 of the 1933 Act or Section 20 of the Exchange
Act) to the same extent as provided above with respect to the indemnification of
the holders of Securities.
Section II.7. Additional Indemnification. In the event of any registration
under the 1933 Act of any offering of Securities, each holder of such Securities
hereby severally agrees to indemnify and hold harmless the Company, each other
holder and each other Person, if any, who controls the Company within the
meaning of the 1933 Act and each other Person (including each underwriter, and
each other Person, if any, who controls such underwriter) who participates in
the offering of such Securities against any Losses, joint or several, to which
the Company, such holder or controlling Person or participating Person may
become subject under the 1933 Act or otherwise, insofar as such Losses (or
proceedings in respect thereof) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of any material fact contained, on the
effective date thereof, in any registration statement under which an offering of
such Securities was registered under the 1933 Act, in any preliminary prospectus
or final prospectus contained therein, or in any amendment or supplement
thereto, (b) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement therein not
misleading or (c) any violation or alleged violation by the Purchaser of the
1933 Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state securities law, and
will reimburse the Company, such holder and each such controlling Person or
participating Person for any legal or other expenses reasonably incurred by the
Company, such holder or such controlling or participating Person in connection
with investigating or defending any such Loss or proceeding; provided that such
holder will be liable in any such case to the extent, and only to the extent,
that any such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement, such preliminary or final prospectus or such amendment or supplement
in reliance upon and in conformity with written information furnished in an
instrument duly executed by such holder specifically for use in the preparation
thereof. The Company shall be entitled to receive indemnities from underwriters
participating in the distribution to the same extent as provided above with
respect to information so furnished in writing by such Persons specifically for
inclusion in any registration statement or prospectus.
Section II.8. Indemnification Procedures. If any action or proceeding
(including any governmental investigation or inquiry) shall be brought or any
claim shall be asserted against any Person entitled to indemnity hereunder (an
"indemnified party"), such indemnified party shall promptly notify the party
from which such indemnity is sought (the "indemnifying party") in writing, and
the indemnifying party shall assume and control the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses incurred in connection with the defense
thereof. Any such fees and expenses borne by the indemnified party (including
any fees and expenses incurred in connection with investigating or preparing to
defend such action or proceeding) shall be paid to the indemnified party, as
incurred, within 15 days of written notice thereof to the indemnifying party
(regardless of whether it is ultimately determined that an indemnified party is
not entitled to indemnification hereunder; provided the indemnified party shall
reimburse such fees and expenses if it is finally determined that such
indemnified party is not entitled to indemnity hereunder). Any such indemnified
party shall have the right to employ separate counsel in any such action, claim
or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be the expenses of such indemnified party unless
(a) the indemnifying party has agreed to pay such fees and expenses, or (b) the
indemnifying party shall have failed to assume promptly the defense of such
action, claim or proceeding, or (c) the named parties to any such action, claim
or proceeding (including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or in addition to those available to the indemnifying
party and that the assertion of such defenses would create a conflict of
interest such that counsel employed by the indemnified party could not
faithfully represent the indemnified party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action, claim or
proceeding on behalf of such indemnified party; it being understood, however,
that the indemnifying party shall not, in connection with any one such action,
claim or proceeding or separate but substantially similar or related actions,
claims or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all such indemnified parties, unless in the reasonable
judgment of such indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
action, claim or proceeding, in which event the indemnifying party shall be
obligated to pay the fees and expenses of such additional counsel or counsels).
The indemnifying party shall not be liable for any settlement of any such action
or proceeding effected without its written consent.
Section II.9. Contribution. If the indemnification provided for in this
Agreement is unavailable to an indemnified party under Section 2.06 or 2.07
(other than by reason of exceptions provided in those Sections) in respect of
any Losses, then each applicable indemnifying party in lieu of indemnifying such
indemnified party shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions, statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and the
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact,
has been taken or made by, or relates to information suppled by, such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Section 2.09, any legal or other fees or expenses reasonably incurred by
such party in connection with any action, suit, claim, investigation or
proceeding. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
Section II.10. Form S-3. The Company represents and warrants that it meets
the requirements for the use of Form S-3 for registration of the sale by the
Purchaser of the Securities, and the Company shall file all reports required to
be filed by the Company with the SEC in a timely manner so as to maintain such
eligibility for the use of Form S-3.
ARTICLE III
Miscellaneous
Section III.1. APPLICABLE LAW. THIS AGREEMENT AND ALL RIGHTS ARISING
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE.
Section III.2. WAIVER OF JURY. THE COMPANY AND THE PURCHASER EACH HEREBY
WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT AND ANY RIGHT
ARISING HEREUNDER.
Section III.3. Jurisdiction and Venue; Service of Process. (a) The Company
and the Purchaser each hereby irrevocably submits to the non-exclusive
jurisdiction of any state or federal court in the Borough of Manhattan, The City
of New York for the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and any right arising hereunder, and to the
laying of venue in the Borough of Manhattan, The City of New York. The Company
and the Purchaser each hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection to the laying of the venue of any
such suit, action or proceeding brought in the aforesaid courts and hereby
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.
(b) The Company agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Company at its address set forth in Section 3.06 or at such other address of
which the Purchaser shall have been notified pursuant thereto. The Company
further agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to xxx any
other jurisdiction.
(c) Each of the Purchaser and the Company waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this Section 3.03 any special, exemplary, punitive
or consequential damages. The waiver set forth in this Section 3.03(c) shall
terminate automatically upon the occurrence of a "Separation Event", as defined
in that certain stockholder rights protection plan of Pharmacia & Upjohn, Inc.
in effect on the date of this Agreement, as it may from time to time be amended.
Section III.4. Amendments and Waivers.
(a) Any provision of this Agreement may be amended, modified, supplemented
or waived, but only by a written amendment or supplement, or written waiver,
signed by the Company and the Purchaser.
(b) Except to the extent expressly set forth therein, any waiver shall be
effective only in the specific instance and for the specific purpose for which
such waiver is given.
Section III.5. Cumulative Rights; No Waiver. Each and every right granted
to the Purchaser or allowed the Purchaser by law or equity, shall be cumulative
and not exclusive and may be exercised from time to time. No failure on the part
of the Purchaser to exercise, and no delay in exercising, any right will operate
as a waiver thereof, nor will any single or partial exercise by the Purchaser of
any right preclude any other or future exercise thereof or the exercise of any
other right.
Section III.6. Notices. (a) Any communication, demand or notice to be given
hereunder will be duly given when delivered in writing or by telecopy to a party
at its address as indicated below or such other address as such party may
specify in a notice to each other party hereto. A communication, demand or
notice given pursuant to this Section 3.06 shall be addressed:
If to the Company, to
Miravant Medical Technologies
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
with a copy (which, in and of itself, shall not constitute notice) to
Nida & Xxxxxxx PC
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
If to the Purchaser, to
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Treasurer
and
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Senior Vice President
of Business Development
and
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy (which, in and of itself, shall not constitute notice) to
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxx
and Xxxxxx X. Xxxxxxx
(b) Unless otherwise provided to the contrary herein, any notice which is
required to be given in writing pursuant to the terms of this Agreement may be
given by telecopy.
Section III.7. Separability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions contained in this Agreement shall not in any way be
affected or impaired thereby.
Section III.8. Persons Benefitting. This Agreement shall be binding upon
and inure to the benefit of the Purchaser and the Company, and their respective
successors, assigns, beneficiaries, executors and administrators. Nothing in
this Agreement is intended or shall be construed to confer upon any Person,
other than the Company and the Purchaser (and such successors, assigns,
beneficiaries, executors and administrators), any right, remedy or claim under
or by reason of this Agreement or any part hereof. This Agreement may not be
assigned without the written consent of the parties hereto, and any purported
assignment made in violation of this provision shall be null and void. The
provisions of the previous sentence notwithstanding, the Purchaser may assign
its rights and obligations under this letter agreement to any of its wholly
owned subsidiaries without the consent of the Company.
Section III.9. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
Section III.10. Headings. The descriptive headings of the several Sections
of this Agreement are inserted for convenience and shall not control or affect
the meaning or construction of any of the provisions hereof.
Section III.11. Remedies. In the event of a breach by the Company or by the
Purchaser of any of their obligations under this Agreement, the Purchaser or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and the
Purchaser agree that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date first above written.
MIRAVANT MEDICAL TECHNOLOGIES
By:________________________________
Name:
Title:
PHARMACIA & UPJOHN, INC.
By:________________________________
Name:
Title:
