EXHIBIT B
TO
UNSECURED CONVERTIBLE DEBENTURE
PURCHASE AGREEMENT
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of February 5, 2004 (the
"Agreement"), is made by and among MIRAVANT MEDICAL TECHNOLOGIES, a Delaware
corporation (the "Company"), with headquarters located at 000 Xxxxxx Xxxxx,
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000, and the purchasers whose names appear on the
signature pages hereto (collectively, the "Purchasers").
W I T N E S S E T H:
WHEREAS, in connection with the Unsecured Convertible Debenture
Purchase Agreement of even date herewith among the Purchasers and the Company
(the "Purchase Agreement"), the Company has agreed, upon the terms and subject
to the conditions of said Purchase Agreement, to issue and sell to the
Purchasers the Company's Unsecured Convertible Debentures (the "Debentures")
that are convertible into shares of the Company's common stock, par value $0.01
per share (the "Common Stock"); and
WHEREAS, to induce the Purchasers to execute and deliver the Purchase
Agreement, and to consummate the transactions contemplated thereby, 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.
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, and intending to be
legally bound, the Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Purchase Agreement. As used
in this Agreement, the following terms shall have the following meanings:
(a) "Purchasers" means the Purchasers and any transferee or assignee of any
Purchaser who agrees to become bound by the provisions of this Agreement in
accordance with Section 10 hereof.
(b) "Registrable Securities" means (i) the shares of Common Stock issued or
issuable upon conversion of or otherwise pursuant to the Debentures, including,
without limitation, any shares of Common Stock issued or issuable by the Company
as the payment of interest due on the Debentures, (ii) any additional shares of
Common Stock or other securities (including any shares of Common Stock issuable
upon conversion or exchange of any such other securities) issued to Purchasers
in accordance with Section 3.4 of the Purchase Agreement or Section 4 of the
Debentures, and (iii) any shares of Common Stock or other securities issued or
issuable from time to time as a dividend or other distribution on or in exchange
or otherwise with respect to any of the foregoing (including the Debentures and
any other securities contemplated by the foregoing clause (ii)); provided,
however, that the Purchasers cannot convert their Debentures unless and until
such time as the Company has obtained shareholder approval for authorization of
a sufficient amount of Conversion Shares and, accordingly, the term "Registrable
Securities" shall not include any of the shares of Common Stock or other
securities referenced in clauses (i) - (iii) of this definition to the extent
such shares of Common Stock have not been authorized by the shareholders of the
Company.
(c) "Registration Period" means the period between the date at which the
Registrable Securities are authorized and reserved by the Company and its
shareholders and the earlier of (i) the date on which all of the Registrable
Securities have been sold in transactions where the transferee is not subject to
securities law resale restrictions, or (ii) the date on which the Registrable
Securities may be immediately sold to the public without registration and free
of restrictions on transfer pursuant to Rule 144(k) under the Securities Act or
any successor provision.
(d) "Registration Statement" means a registration statement of the Company filed
with the Securities and Exchange Commission (the "SEC") under the Securities
Act.
(e) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act and applicable rules and regulations
thereunder (including Rule 415 under the Securities Act), and the declaration or
ordering of effectiveness of such Registration Statement by the SEC.
2. Registration.
(a) Mandatory Registration. Pursuant to the terms of this Section 2(a), the
Company shall prepare promptly and file a Registration Statement with the SEC,
registering at a sufficient number of shares to cover the Registrable Securities
for resale, as soon as practicable, but in any event no later April 30, 2004. To
the extent allowable under the Securities Act and the Rules promulgated
thereunder (including Rule 416), the Registration Statement shall include such
indeterminate number of additional shares of Common Stock as may become issuable
upon conversion of the Debentures to prevent dilution resulting from stock
splits, stock dividends, dilution or similar transactions as provided in the
Purchase Agreement. The Registration Statement (and each amendment or supplement
thereto) shall be provided to, and subject to the reasonable approval of, the
Purchasers and their counsel prior to its filing or other submission. The
Company shall use its commercially reasonable best efforts to cause such
Registration Statement to be declared effective by the SEC as soon as
practicable following the filing thereof, but in any event no later than June
30, 2004.
(b) Warranty by the Company. If any Registration Statement (or any amendment or
supplement to any Registration Statement) required to be filed pursuant to
Section 2(a) or 3(c) hereof has not been filed by the Company with the SEC prior
to April 30, 2004 (the "Initial Filing Deadline"), or the forty-fifth (45th) day
following the applicable Registration Trigger Date (as defined in Section 3(c)
below), in the case of a filing under Section 3(c) (a "Subsequent Filing
Deadline"), or if the Company shall not have caused the Registration Statement
to be declared effective by the SEC not later than June 30, 2004 (the "Initial
Effectiveness Deadline"), or after a Registration Statement is first declared
effective by the SEC, it ceases for any reason to remain continuously effective
as to all Registrable Securities for which it is required to be effective, for
in any such cases ten Business Days (which need not be consecutive days) in the
aggregate during any 12-month period (each such day being a "Non-Effective
Day"), then the Company shall use its commercially reasonable efforts to file
and have the Registration Statement be declared effective by the Securities
Exchange Commission.
(c) Piggy-Back Registrations. If, at any time and from time to time prior to the
expiration of the Registration Period, the Company shall file with the SEC a
Registration Statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities
(other than on Form S-4 or Form S-8 or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans), the Company shall send to each Purchaser written
notice of such filing, and if, within fifteen (15) days after the date of such
notice, such Purchaser shall so request in writing, the Company shall include in
such Registration Statement all or any part of the Registrable Securities such
Purchaser requests to be registered. Notwithstanding the foregoing, in the event
that, in connection with any underwritten public offering, the managing
underwriter(s) thereof shall impose a limitation on the number of shares of
Common Stock which may be included in the Registration Statement because, in
such underwriter(s)' judgment, marketing or other factors dictate such
limitation is necessary to facilitate public distribution, then the Company
shall be obligated to include in such Registration Statement only such limited
portion of the Registrable Securities with respect to which such Purchaser has
requested inclusion hereunder as the underwriter shall permit; provided,
however, that (i) the Company shall not exclude any Registrable Securities
unless the Company has first excluded all outstanding securities, the holders of
which are not contractually entitled to inclusion of such securities in such
Registration Statement or are not contractually entitled to pro rata inclusion
with the Registrable Securities, (ii) after giving effect to the immediately
preceding proviso, any such exclusion of Registrable Securities shall be made
pro rata among the Purchasers seeking to include Registrable Securities and the
holders of other securities having the contractual right to inclusion of their
securities in such Registration Statement by reason of demand registration
rights, in proportion to the number of Registrable Securities or other
securities, as applicable, sought to be included by each such Purchaser or other
holder, and (iii) no such reduction shall reduce the amount of Registrable
Securities included in the registration below twenty-five (25%) of the total
amount of securities included in such registration. No right to registration of
Registrable Securities under this Section 2(c) shall be construed to limit any
registration required under Section 2(a) hereof. If an offering in connection
with which a Purchaser is entitled to registration under this Section 2(c) is an
underwritten offering, then each Purchaser whose Registrable Securities are
included in such Registration Statement shall, unless otherwise agreed by the
Company, offer and sell such Registrable Securities in an underwritten offering
using the same underwriter or underwriters and, subject to the provisions of
this Agreement, on the same terms and conditions as other shares of Common Stock
included in such underwritten offering.
3. Additional Obligations of the Company. In connection with the registration of
the Registrable Securities, the Company shall have the following additional
obligations:
(a) The Company shall respond promptly to any and all comments made by the staff
of the SEC to any Registration Statement required to be filed hereunder, and
shall submit to the SEC, before the close of business on the second (2nd)
business day immediately following the business day on which the Company learns
(either by telephone or in writing) that no review of such Registration
Statement will be made by the SEC or that the staff of the SEC has no further
comments on such Registration Statement, as the case may be, a request for
acceleration of the effectiveness of such Registration Statement to a time and
date as soon as practicable. The Company shall keep any such Registration
Statement effective pursuant to Rule 415 under the Securities Act at all times
during the Registration Period.
(b) Each Registration Statement required to be filed hereunder (including any
amendments or supplements thereto and prospectuses contained therein and all
documents incorporated by reference therein) filed by the Company (i) shall
comply in all material respects with the requirements of the Securities Act and
the rules and regulations promulgated thereunder and (ii) shall not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. The consolidated
financial statements of the Company included in any such Registration Statement
or incorporated by reference therein (A) shall comply as to form in all material
respects with the applicable accounting requirements and the published rules and
regulations of the SEC applicable with respect thereto, (B) shall be prepared in
accordance with U.S. generally accepted accounting principles, consistently
applied during the periods involved (except as may be otherwise indicated in
such financial statements or the notes thereto or, in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed on summary statements) and (C) shall fairly present in all material
respects 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 immaterial year-end adjustments).
(c) The Company (i) shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to any Registration
Statement required to be filed hereunder and the prospectus used in connection
with any such Registration Statement as may be necessary to keep the
Registration Statement effective at all times during the Registration Period,
and (ii) during the Registration Period, shall comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities of
the Company covered by any such Registration Statement until such time as all of
such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the sellers thereof as set forth in the
Registration Statement. In the event the number of shares of Common Stock
included in a Registration Statement filed pursuant to this Agreement is, for
any three (3) consecutive trading days (the last of such three (3) trading days
being the "Registration Trigger Date"), insufficient to cover all of the
Registrable Securities, the Company shall provide each Purchaser written notice
of such Registration Trigger Date within five (5) business days thereafter and
shall amend, if permissible, the Registration Statement, and/or file a new
Registration Statement (on the short form available therefor, if applicable), so
as to cover all of the Registrable Securities as soon as practicable, but in no
event more than twenty (20) days after the Registration Trigger Date. The
Company shall use its commercially reasonable best efforts to cause such
amendment(s) and/or new Registration Statement(s) to become effective as soon as
practicable following the filing thereof.
(d) The Company shall furnish to each Purchaser whose Registrable Securities are
included in the Registration Statement and such Purchaser's legal counsel (i)
promptly after the same is prepared and publicly distributed, filed with the SEC
or received by the Company, one copy of the Registration Statement and any
amendment thereto; each preliminary prospectus and final prospectus and each
amendment or supplement thereto; and, in the case of the Registration Statement
required under Section 2(a) above, each letter written by or on behalf of the
Company to the SEC and each item of correspondence from the SEC, in each case
relating to such Registration Statement (other than any portion of any item
thereof which contains information for which the Company has sought confidential
treatment); (ii) on the date of effectiveness of any Registration Statement or
any amendment thereto, a notice stating that the Registration Statement or
amendment has been declared effective; and (iii) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto, and such other documents as such Purchaser may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Purchaser.
(e) The Company shall use its commercially reasonable best efforts to (i)
register and qualify the Registrable Securities covered by the Registration
Statement under such other securities or "blue sky" laws of such jurisdictions
as the Purchasers reasonably request, (ii) prepare and file in those
jurisdictions such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period, (iii) take
such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (iv)
take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions. Notwithstanding the
foregoing provision, the Company shall not be required in connection therewith
or as a condition thereto to (A) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section 3(e),
(B) subject itself to general taxation in any such jurisdiction, (C) file a
general consent to service of process in any such jurisdiction, (D) provide any
undertakings that cause more than nominal expense or burden to the Company, or
(E) make any change in its Certificate of Incorporation or Bylaws, which in each
case the Board of Directors of the Company determines to be contrary to the best
interests of the Company and its stockholders.
(f) In the event the Purchasers hold a majority in interest of the Registrable
Securities being offered in an underwriter offering, the Company shall enter
into and perform its obligations under an underwriting agreement in usual and
customary form including, without limitation, customary indemnification and
contribution obligations, with the managing underwriter of such offering. The
Company shall be responsible for payment of the fees of such underwriters and
the reasonable attorney fees and costs incurred by one law firm selected by the
Purchasers to represent their respective interests in the underwritten offering.
No Purchaser shall be obligated to participate in any such underwriting.
(g) The Company shall notify each Purchaser who holds Registrable Securities
being sold pursuant to a Registration Statement of the happening of any event of
which the Company has knowledge as a result of which the prospectus included in
the Registration Statement as then in effect includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading (a "Suspension Event"). The Company (i) shall
make such notification as promptly as practicable after the Company becomes
aware of such Suspension Event, (ii) shall promptly, but in all events within
five (5) business days, use its commercially reasonable best efforts to prepare
a supplement or amendment to the Registration Statement to correct such untrue
statement or omission, and (iii) shall deliver such number of copies of such
supplement or amendment to each Purchaser as such Purchaser may reasonably
request.
(h) The Company shall use its commercially reasonable best efforts (i) to
prevent the issuance of any stop order or other suspension of effectiveness of
any Registration Statement that includes Registrable Securities, and, if such an
order is issued, to obtain the withdrawal of such order at the earliest possible
time (including, in each case by amending or supplementing such Registration
Statement), and (ii) to notify each Purchaser who holds Registrable Securities
being sold (or, in the event of an underwritten offering, the managing
underwriters) of the issuance of such order and the resolution thereof.
(i) The Company shall permit a single firm of counsel designated by the
Purchasers who hold a majority in interest of the Registrable Securities being
sold pursuant to such registration to review any Registration Statement required
to be filed hereunder and all amendments and supplements thereto (as well as all
requests for acceleration or effectiveness thereof) a reasonable period of time
prior to their filing with the SEC, and shall not file any document in a form to
which such counsel reasonably objects.
(j) At the request of any Purchaser who holds Registrable Securities being sold
pursuant to any registration hereunder, the Company shall furnish on the date
that Registrable Securities are delivered to an underwriter for sale in
connection with the Registration Statement (i) a letter, dated such date, from
the Company's independent certified public accountants in form and substance as
is customarily given by independent certified public accountants to underwriters
in an underwritten public offering, addressed to the Purchasers; and (ii) an
opinion, dated such date, from counsel representing the Company for purposes of
such Registration Statement, in form and substance as is customarily given in an
underwritten public offering, addressed to the underwriters and Purchasers.
(k) The Company shall make generally available to the Purchasers as soon as
practicable, an earnings statement (in form complying with the provisions of
Rule 158 under the Securities Act) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following the
effective date of the Registration Statement. The Company will be deemed to have
complied with its obligations under this Section 3(k) upon the Company's filing,
on an appropriate form, the appropriate report of the Company as required by the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "Exchange Act").
(l) The Company shall make available for inspection by (i) any Purchasers whose
Registrable Securities are being sold pursuant to such registration, (ii) any
underwriter participating in any disposition pursuant to the Registration
Statement, and (iii) any attorney, accountant or other agent retained by any
such Purchaser or underwriter (collectively, the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary to
enable each Inspector to exercise its due diligence responsibility, and cause
the Company's officers, directors and employees to supply all information which
any Inspector may reasonably request for purposes of such due diligence;
provided, however, that each Inspector shall hold in confidence and shall not
make any disclosure (except to a Purchaser) of any Record or other information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (A) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in any
Registration Statement, (B) the release of such Records is ordered pursuant to a
subpoena or other order from a court or government body of competent
jurisdiction, or such release is reasonably necessary in connection with
litigation or other legal process or (C) the information in such Records has
been made generally available to the public other than by disclosure in
violation of this or any other agreement. The Company shall not be required to
disclose any confidential information in such Records to any Inspector until and
unless such Inspector shall have entered into confidentiality agreements (in
form and substance satisfactory to the Company) with the Company with respect
thereto, substantially in the form of this Section 3(l). The Purchasers agree
that they shall, upon learning that disclosure of such Records is sought in or
by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, the Records deemed confidential. Nothing herein shall be
deemed to limit the Purchasers' ability to sell Registrable Securities in a
manner which is otherwise consistent with applicable laws and regulations.
(m) The Company shall hold in confidence and shall not make any disclosure of
information concerning any Purchaser provided to the Company pursuant hereto
unless (i) disclosure of such information is necessary to comply with federal or
state securities laws, (ii) the disclosure of such information is necessary to
avoid or correct a misstatement or omission in any Registration Statement, (iii)
the release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, or such release is
reasonably necessary in connection with litigation or other legal process or
(iv) such information has been made generally available to the public other than
by disclosure in violation of this or any other agreement. The Company agrees
that it shall, upon learning that disclosure of such information concerning any
Purchaser is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to such Purchaser and
allow such Purchaser, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
(n) The Company shall use its commercially reasonable best efforts to promptly
cause all of the Registrable Securities covered by any Registration Statement to
be listed or designated for quotation on the Nasdaq SmallCap Market, the Nasdaq
National Market, the New York Stock Exchange, the American Stock Exchange or any
other national securities exchange or automated quotation system and on each
additional national securities exchange or automated quotation system on which
securities of the same class or series issued by the Company are then listed or
quoted, if any, if the listing or quotation of such Registrable Securities is
then permitted under the rules of such exchange or automated quotation system,
and in any event, without limiting the generality of the foregoing, to arrange
for or maintain at least two market makers to register with the National
Association of Securities Dealers, Inc. as such with respect to the Registrable
Securities.
(o) The Company shall provide a transfer agent and registrar, which may be a
single entity, for the Registrable Securities not later than the effective date
of the Registration Statement required to be filed pursuant to Section 2(a)
hereof.
(p) The Company shall cooperate with any Purchaser who holds Registrable
Securities being sold and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing Registrable Securities to be sold pursuant to
any Registration Statement and enable such certificates to be in such
denominations or amounts, as the case may be, and registered in such names, as
the managing underwriter or underwriters, if any, or the Purchasers may
reasonably request; and, within three (3) business days after a Registration
Statement which includes Registrable Securities is ordered effective by the SEC,
the Company shall deliver, and shall cause legal counsel selected by the Company
to deliver, to the transfer agent for the Registrable Securities (with copies to
the Purchasers whose Registrable Securities are included in such Registration
Statement) instructions to the transfer agent to issue new stock certificates
without a legend and an opinion of such counsel that the Registrable Shares have
been registered.
(q) The Company shall take all other reasonable actions necessary to expedite
and facilitate disposition by the Purchasers of the Registrable Securities
pursuant to the Registration Statement.
(r) At the request of any Purchaser, the Company shall promptly prepare and file
with the SEC such amendments (including post-effective amendments) and
supplements to any Registration Statement required to be filed hereunder and the
prospectus used in connection with any such Registration Statement as may be
necessary in order to change the plan of distribution set forth in such
Registration Statement to conform to written information supplied to the Company
by such Purchaser for such purpose.
(s) The Company shall comply with all applicable laws related to a Registration
Statement and offering and sale of securities and all applicable rules and
regulations of governmental authorities in connection therewith.
(t) From and after the date of this Agreement until the expiration of the
Registration Period, except as set forth on Schedule 1 hereto, the Company shall
not, and shall not agree to, allow the holders of any securities of the Company
to include any of their securities which are not Registrable Securities in the
Registration Statement required to be filed pursuant to Section 2(a) or 3(c)
hereof without the consent of the holders of a majority in interest of the
Registrable Securities.
4. Obligations of the Purchasers. In connection with the registration of the
Registrable Securities, each Purchaser shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the Company to
effect the registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Purchaser that such Purchaser shall
furnish to the Company such information regarding itself, the number of
Registrable Securities held by it and the intended method of disposition of the
Registrable Securities held by it as shall be reasonably required by rules of
the SEC to effect the registration of the Registrable Securities. The
information so provided by the Purchasers shall be included without material
alteration in the Registration Statement and shall not be modified without such
Purchaser's written consent. At least ten (10) business days prior to the first
anticipated filing date of the Registration Statement, the Company shall notify
the Purchasers of the information the Company requires from each such Purchaser.
(b) Each Purchaser, by such Purchaser's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any Registration
Statement required to be filed hereunder, unless such Purchaser has notified the
Company in writing of such Purchaser's election to exclude all of such
Purchaser's Registrable Securities from such Registration Statement.
(c) In the event the Purchasers holding a majority in interest of the
Registrable Securities being registered determine to engage the services of an
underwriter, each Purchaser agrees to enter into and perform such Purchaser's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of the Registrable Securities, unless such Purchaser has notified
the Company in writing of such Purchaser's election to exclude all of such
Purchaser's Registrable Securities from the applicable Registration Statement.
No Purchaser shall be obligated to participate in any such underwriting.
(d) Upon receipt of any notice from the Company of the happening of any event of
the kind described in Section 3(g), 3(h) or 5(a) with respect to any
Registration Statement covering Registrable Securities, each Purchaser shall
immediately discontinue disposition of Registrable Securities pursuant to such
Registration Statement until such Purchaser's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g), 3(h) or 5(a),
as applicable, and, if so directed by the Company, such Purchaser shall deliver
to the Company (at the expense of the Company) or destroy (and deliver to the
Company a certificate of destruction) all copies, other than file copies, in
such Purchaser's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. Notwithstanding the
foregoing or anything to the contrary in this Agreement, but subject to
compliance with applicable laws, the Company shall cause the transfer agent for
the Registrable Securities to deliver unlegended shares of Common Stock to a
transferee of a Purchaser in accordance with the terms of the Debentures in
connection with any sale of Registrable Securities with respect to which any
such Purchaser has entered into a contract for sale prior to receipt of such
notice and for which any such Purchaser has not yet settled.
(e) No Purchaser may participate in any underwritten registration hereunder
unless such Purchaser (i) agrees to sell such Purchaser's Registrable Securities
on the basis provided in any underwriting arrangements approved by the
Purchasers entitled hereunder to approve such arrangements, (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements, and (iii) agrees to pay its pro rata share of all
underwriting discounts and commissions and other fees and expenses of investment
bankers and any manager or managers of such underwriting and legal expenses of
the underwriter applicable with respect to its Registrable Securities, in each
case to the extent not payable by the Company pursuant to the terms of this
Agreement. Notwithstanding anything in this Section 4(e) to the contrary, this
Section 4(e) is not intended to limit any Purchaser's rights under Sections 2(a)
or 3(c) hereof.
5. Delay Periods.
(a) Delay Period. If, at any time prior to the expiration of the Registration
Period, the Company's Board of Directors determines, in its reasonable good
faith judgment, that the disposition of Registrable Securities would require the
premature disclosure of material non-public information which may reasonably be
expected to have an adverse effect on the Company, then the Company shall not be
required to maintain the effectiveness of or amend or supplement the
Registration Statement for a period (a "Disclosure Delay Period") expiring upon
the earlier to occur of (i) the date on which such material information is
disclosed to the public or ceases to be material or (ii) subject to Section 5(b)
hereof, up to ten (10) trading days after the date on which the Company provides
a notice to the Purchasers under Section 3(g) hereof stating that the failure to
disclose such non-public information causes the prospectus included in the
Registration Statement, as then in effect, to include an untrue statement of a
material fact or to omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading (each, a "Disclosure
Delay Period Notice"). For the avoidance of doubt, in no event shall a
Disclosure Delay Period exceed ten (10) trading days.
(b) The Company shall give prompt written notice, in the manner prescribed by
Section 12 hereof, to the Purchasers of each Disclosure Delay Period, which
notice shall, if practicable, estimate the duration of such Disclosure Delay
Period. Each Purchaser shall, upon receipt of a Disclosure Delay Period Notice
prior to such Purchaser's disposition of all of its Registrable Securities,
forthwith discontinue the disposition of such Registrable Securities pursuant to
the Registration Statement, and will not deliver any prospectus forming a part
thereof in connection with any sale of such Registrable Securities until the
expiration of such Disclosure Delay Period. Notwithstanding anything in this
Section 5 to the contrary, the Company shall not deliver more than two
Disclosure Delay Period Notices in any one year period and there shall not be
more than an aggregate of 15 calendar days in any 90 calendar day period during
which the Company is in a Disclosure Delay Period.
6. Expenses of Registration. All expenses (other than underwriting discounts and
commissions) incurred by the Company or the Purchasers in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3
(including, without limitation, all registration, listing and qualifications
fees, printers and accounting fees, the fees and disbursements of counsel for
the Company, and the reasonable fees and disbursements of one counsel selected
by the Purchasers pursuant to Section 3(f) hereof), shall be borne by the
Company. In addition, the Company shall pay each Purchaser's costs and expenses
(including legal fees) incurred in connection with the enforcement of the rights
of such Purchaser hereunder.
7. Indemnification. In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company shall indemnify, hold harmless
and defend (i) each Purchaser who holds such Registrable Securities, (ii) the
directors, officers, partners, members, employees and agents of each such
Purchaser, (iii) each person, if any, who controls each such Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, (iv) any underwriter (as defined in the Securities Act) for the Purchasers,
(v) the directors, officers, partners, members, employees and agents of any such
underwriter, and (vi) each person, if any, who controls any such underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "Purchaser Indemnified Person"), against any losses,
claims, damages, expenses or liabilities (joint or several) (collectively
"Claims") to which any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon: (A) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or any post-effective amendment thereof
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(B) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus if used prior to the effective date of
such Registration Statement, or contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or supplement thereto
with the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading, or
(C) any violation or alleged violation by the Company of the Securities Act, the
Exchange Act or any state securities law or any rule or regulation (the matters
in the foregoing clauses (A) through (C) being, collectively, "Violations").
Subject to the restrictions set forth in Section 7(c) with respect to the number
of legal counsel, the Company shall reimburse the Purchasers and each other
Purchaser Indemnified Person, promptly as such expenses are incurred and are due
and payable, for any legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 7(a): (x) shall not apply to a Claim arising out of or
based upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by such Purchaser Indemnified
Person expressly for use in the Registration Statement or any such amendment
thereof or supplement thereto; (y) with respect to any preliminary prospectus,
shall not inure to the benefit of any Purchaser Indemnified Person if the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected in the prospectus, as then amended or supplemented, if a
prospectus was timely made available by the Company pursuant to Section 3(d)
hereof and the Purchaser Indemnified Person was promptly advised in writing not
to use the incorrect prospectus prior to the use giving rise to the Violation
and such Purchaser Indemnified Person, notwithstanding such advice, used it; and
(z) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Purchaser Indemnified Persons and shall survive the transfer of the Registrable
Securities by the Purchasers pursuant to Section 10.
(b) In connection with any Registration Statement in which a Purchaser is
participating, (i) each such Purchaser shall, severally and not jointly,
indemnify, hold harmless and defend, to the same extent and in the same manner
set forth in Section 7(a), the Company, each of its directors, each of its
officers who signs the Registration Statement, each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, any underwriter and any other stockholder selling
securities pursuant to the Registration Statement or any of its directors or
officers or any person who controls such stockholder or underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(each, a "Company Indemnified Person"), against any Claims to which any of them
may become subject, under the Securities Act, the Exchange Act or otherwise,
insofar as such Claims arise out of or are based upon any Violation, in each
case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished to the
Company by such Purchaser expressly for use in connection with such Registration
Statement, and (ii) subject to the restrictions set forth in Section 7(c), such
Purchaser shall reimburse the Company Indemnified Persons, promptly as such
expenses are incurred and are due and payable, for any legal or other reasonable
expenses incurred by them in connection with investigating or defending any such
Claim; provided, however, that the indemnification obligations contained in this
Section 7(b) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of such Purchaser,
which consent shall not be unreasonably withheld; provided further, however,
that the Purchasers shall be liable under this Agreement (including this Section
7(b) and Section 8) for only that aggregate amount as does not exceed the net
proceeds actually received by such Purchaser as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such Company Indemnified Person and shall survive the transfer of
the Registrable Securities by the Purchasers pursuant to Section 10.
Notwithstanding anything to the contrary contained herein, the indemnification
obligations contained in this Section 7(b) with respect to any preliminary
prospectus shall not inure to the benefit of any Company Indemnified Person if
the untrue statement or omission of material fact contained in the preliminary
prospectus was corrected on a timely basis in the prospectus, as then amended or
supplemented.
(c) Promptly after receipt by any party under this Section 7 of notice of the
commencement of any action (including any governmental action), such party
shall, if a Claim in respect thereof is to made against any indemnifying party
under this Section 7, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying parties
and the indemnified party; provided, however, that such indemnifying party shall
not be entitled to assume such defense and an indemnified party shall have the
right to retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the indemnified party
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding or the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and any such indemnified party reasonably determines
that there may be legal defenses available to such indemnified party that are in
conflict with those available to such indemnifying party. The indemnifying party
shall pay for only one separate legal counsel for the indemnified parties, and
such legal counsel shall be selected by the Purchasers holding a majority in
interest of the Registrable Securities included in the Registration Statement to
which the Claim relates (if the parties entitled to indemnification hereunder
are Purchaser Indemnified Parties) or by the Company (if the parties entitled to
indemnification hereunder are Company Indemnified Parties). The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the indemnified party under this Section 7, except to the extent
that the indemnifying party is prejudiced in its ability to defend such action.
The indemnification required by this Section 7 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due and
payable. The provisions of this Section 7 shall survive the termination of this
Agreement.
8. Contribution. To the extent any indemnification provided for in Section 7
herein is unavailable to the indemnified parties in respect of any Claim
referred to herein (other than by reason of the exceptions provided therein),
then each such indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such Claim to the fullest extent permitted by law, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and the indemnified party, on the other hand, with
respect to the Violation giving rise to the applicable Claim, which relative
fault shall be determined by reference to, among other things, whether the
Violation relates to information supplied by the indemnifying party or the
indemnified party. In no event shall the obligation of any indemnifying party to
contribute under this Section 8 exceed the amount that such indemnifying party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 7(a) or 7(b) hereof had been
available under the circumstances. The parties agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the indemnified parties were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an indemnified party as a result of
any Claim shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Purchaser or underwriter
shall be required to contribute any amount in excess of the amount by which (a)
in the case of any Purchaser, the net proceeds actually received by such
Purchaser from the sale of Registrable Securities pursuant to such Registration
Statement or (ii) in the case of an underwriter, the total price at which the
Registrable Securities purchased by it and distributed to the public were
offered to the public exceeds, in any such case, the amount of any damages that
such Purchaser or underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act ) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
9. Public Information. With a view to making available to the Purchasers the
benefits of Rule 144 promulgated under the Securities Act or any other similar
rule or regulation of the SEC that may at any time permit the Purchasers to sell
securities of the Company to the public without registration ("Rule 144"), the
Company agrees to:
(a) file with the SEC in a timely manner and make and keep available all reports
and other documents required of the Company under the Exchange Act so long as
the Company remains subject to such requirements and the filing and availability
of such reports and other documents is required for the applicable provisions of
Rule 144; and
(b) furnish to each Purchaser so long as such Purchaser holds Debentures or
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 and the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit such Purchaser
to sell such securities pursuant to Rule 144 without registration.
10. Assignment of Registration Rights. The rights of the Purchasers hereunder,
including the right to have the Company register Registrable Securities pursuant
to this Agreement, shall be automatically assigned by each Purchaser to any
transferee or assignee of all or any portion of the Debentures or Registrable
Securities if: (a) the Purchaser agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (b) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (i) the name and address of such transferee or assignee and
(ii) the securities with respect to which such registration rights are being
transferred or assigned, (c) following such transfer or assignment, the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act and applicable state securities laws, (d) the transferee or
assignee agrees in writing for the benefit of the Company to be bound by all of
the provisions contained herein, and (e) such transfer shall have been made in
accordance with the applicable requirements of the Purchase Agreement.
11. Amendment of Registration Rights. Provisions of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Purchasers holding a majority in interest
of the Registrable Securities; provided, however, that (a) no amendment hereto
which restricts the ability of a Purchaser to elect not to participate in an
underwritten offering shall be effective against any Purchaser which does not
consent in writing to such amendment; (b) no consideration shall be paid to a
Purchaser by the Company in connection with an amendment hereto unless each
Purchaser similarly affected by such amendment receives a pro rata amount of
consideration from the Company; and (c) unless a Purchaser otherwise agrees,
each amendment hereto must similarly affect each Purchaser. Any amendment or
waiver effected in accordance with this Section 11 shall be binding upon the
Purchasers and the Company.
12. Miscellaneous.
(a) Conflicting Instructions. A person or entity is deemed to be a holder of
Registrable Securities whenever such person or entity owns of record such
Registrable Securities or the securities upon which such Registrable Securities
are issuable upon exercise, conversion or otherwise. If the Company receives
conflicting instructions, notices or elections from two or more persons or
entities with respect to the same Registrable Securities, the Company shall act
upon the basis of instructions, notice or election received from the registered
owner of such Registrable Securities.
(b) Notice. Any notice herein required or permitted to be given shall be in
writing and may be personally served, sent by certified or registered mail
(postage prepaid and return receipt requested) or delivered by
nationally-recognized overnight courier or by facsimile transmission with
confirmation of receipt, and shall be deemed delivered five days after being
placed in the mail, if mailed, or at the time and date of receipt or refusal of
receipt, if delivered personally or by overnight courier or facsimile
transmission. The initial addresses for such communications shall be as follows,
and each party shall provide notice to the other parties of any change is such
party's address:
(i) if to the Company:
Miravant Medical Technologies
000 Xxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy simultaneously transmitted by
like means (which transmittal shall
not constitute notice hereunder) to:
Xxxxxxxx Xxxxxx Xxxxxxx & Hampton, LLP
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
(ii) if to any Purchaser, to such address as such Purchaser shall have provided
in writing to the Company.
(c) Waiver. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed in the State of Delaware. 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
Purchasers each irrevocably waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding in such forum. The Company and the
Purchasers further each agrees that service of process upon the Company or such
Purchasers, as applicable, in accordance with Section 12(b) shall be deemed in
every respect effective service of process upon the Company or such Purchasers
in any suit or proceeding arising hereunder. Nothing herein contained shall
affect Purchasers' 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.
(e) Severability. In the event that any provision of this Agreement is invalid
or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
(f) Entire Agreement. This Agreement and the Purchase Agreement (including all
schedules and exhibits thereto) constitute the entire agreement among the
parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein or therein. This Agreement supersedes all prior agreements
and understandings among the parties hereto with respect to the subject matter
hereof.
(g) Successors and Assigns. Subject to the requirements of Section 10 hereof,
this Agreement shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties hereto.
(h) Construction. Whenever the context requires, the gender of any word used in
this Agreement includes the masculine, feminine or neuter, and the number of any
word includes the singular or plural. Unless the context otherwise requires, all
references to articles and sections refer to articles and sections of this
Agreement, and all references to schedules are to schedules attached hereto,
each of which is made a part hereof for all purposes. The headings of this
Agreement are for convenience of reference and shall not form part of, or affect
the interpretation of, this Agreement.
(i) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission, and facsimile
signatures shall be binding on the parties hereto.
(j) Further Acts. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(k) Remedies. No provision of this Agreement providing for any remedy to the
Purchasers shall limit any remedy which would otherwise be available to such
Purchasers 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 the
Purchasers. Accordingly, the Company acknowledges that the remedy at law for a
breach of its obligations under this Agreement will be inadequate and agrees, in
the event of a breach or threatened breach by the Company of the provisions of
this Agreement, that a 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.
(l) Consents. All consents and other determinations to be made by the Purchasers
pursuant to this Agreement shall be made by the Purchasers holding a majority in
interest of the Registrable Securities, determined as if all Debentures then
outstanding had been converted into Registrable Securities.
(m) Allocation of Registrable Securities. The initial number of Registrable
Securities included on any Registration Statement filed pursuant to Section 2(a)
or 3(c), and each increase to the number of Registrable Securities included
thereon, shall be allocated pro rata among the Purchasers based on the number of
Registrable Securities held by each Purchaser at the time of such establishment
or increase, as the case may be. In the event a Purchaser shall sell or
otherwise transfer any of such Purchaser's Registrable Securities, each
transferee shall be allocated a pro rata portion of the number of Registrable
Securities included on a Registration Statement for such transferor. Any shares
of Common Stock included on a Registration Statement and which remain allocated
to any person or entity which does not hold any Registrable Securities shall be
allocated to the remaining Purchasers, pro rata based on the number of shares of
Registrable Securities then held by such Purchasers. For the avoidance of doubt,
the number of Registrable Securities held by any Purchaser shall be determined
as if all Debentures then outstanding were converted into or exercised for
Registrable Securities.
(n) Joint Participation in Drafting. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement. As such, the
language used herein shall be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict construction will
be applied against any party to this Agreement.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
COMPANY:
MIRAVANT MEDICAL TECHNOLOGIES
By:/s/ Xxxx X. Xxxxxxx
----------------------
Xxxx X. Xxxxxxx, Ph.D
President and Chief Executive Officer
PURCHASER:
(Print or Type Name of Purchaser)
By:
Name:
Title:
Schedule 1
Additional Shares to be Included on Registration Statement
TO BE PROVIDED
