Exhibit 10.3
TERMINATION AND RELEASE AGREEMENT
This TERMINATION AND RELEASE AGREEMENT (the "Agreement") is made and
entered into as of the 13th day of August, 2003, by and between PHARMACIA AB, a
Swedish corporation ("Pharmacia") and MIRAVANT MEDICAL TECHNOLOGIES, a Delaware
corporation ("Miravant").
W I T N E S S E T H :
WHEREAS: The parties have entered into the Contract Modification and
Termination Agreement dated March 5, 2002 (the "Modification Agreement") which
terminated all prior contractual agreements between Miravant and Pharmacia AB,
Pharmacia Italia S.p.A., and Pharmacia & Upjohn Company but for the Amended and
Restated Credit Agreement, dated as of May 24, 2001 (as amended, modified or
supplemented from time to time, and including the Security Agreement, Warrant
Agreement and Registration Rights Agreement, dated February 18, 1999,
collectively, the "Credit Agreements"), between Miravant and Pharmacia AB; and
WHEREAS: The parties wish to modify the Credit Agreements to, inter alia,
specify that all indebtedness owed by Miravant to Pharmacia will be terminated
and cancelled in consideration of the payment by Miravant of ONE MILLION DOLLARS
($1,000,000) in cash, the issuance of Three Hundred and Ninety Thousand
(390,000) unregistered Common Shares of Miravant, and the repricing and
extension of certain warrants issued by Miravant to Pharmacia.
NOW THEREFORE, the parties agree as follows:
1. Terms used but not defined herein shall have the meaning ascribed to such
terms in the Credit Agreements or Modification Agreement.
2. The consummation of the transactions contemplated by this Agreement shall
occur on the date (the "Effective Date") on which Miravant shall have
delivered to Pharmacia, in the City of New York, the following:
(a) The sum of ONE MILLION DOLLARS ($1,000,000), payable by wire transfer
to Pharmacia.
(b) The delivery by Miravant of a Miravant Common Stock Certificate for
Three Hundred and Ninety Thousand (390,000) unregistered Common Shares
of Miravant in the name of Pharmacia AB (the "New Shares"), or
evidence of the irrevocable direction to its transfer agent to so
issue the New Shares.
(c) An Amendment, in the form attached hereto as Exhibit A, to the
warrants held by Pharmacia extending the term of each of the warrants
to December 31, 2005 and amending the existing price of each warrant
to ONE DOLLAR ($1.00) per share as follows: (i) those warrants issued
by Miravant to Pharmacia on June 9, 1999, December 13, 1999 and May
23, 2000, respectively, for the purchase of One Hundred and Twenty
Thousand (120,000) shares of Common Stock per warrant, par value $0.01
per share (the "Shares"), expiring on June 9, 2004, December 13, 2004
and May 23, 2005, respectively, and issued at exercise prices of
$11.87, $14.8313 and $20.615 per Share, respectively.
(d) An Amendment to the Registration Rights Agreement dated February 18,
1999, in the form attached hereto as Exhibit B, to provide for the
registration of the New Shares.
3. Upon the Effective Date, Pharmacia will deliver to Miravant the following:
(a) The two (2) original Replacement Notes, each marked "Paid in Full" by
Pharmacia.
(b) A California Form UCC-3 duly executed by Pharmacia terminating all
security interests in any assets of Miravant.
(c) A release by Pharmacia of all security interests in Miravant's
Trademarks and Patents currently recorded in the U.S. Patent and
Trademark Office ("USPTO"). Pharmacia appoints Miravant as its
attorney-in-fact to remove such security interests at the USPTO.
(d) Return of the Ramus Medical Technologies and Xillix Medical
Technologies stock certificates (the "Stock Certificates"). Pharmacia
represents and warrants to Miravant that after a diligent search, it
cannot locate the Stock Certificates and therefore considers them lost
for return to Miravant. Pharmacia hereby relinquishes all title, right
and interest to the Stock Certificates and transfers all title, right
and interest to the Stock Certificates to Miravant.
4. The parties hereby agree to and confirm the termination of all contractual
agreements, including, but not limited to, the Credit Agreement, the
Security Agreement and the Modification Agreement, provided however, that
the Registration Rights Agreement and Warrant Agreement, each as amended,
will remain in full force and effect as amended according to Section 2
herein. Accordingly, with effect as of and following the Effective Date,
Pharmacia hereby confirms release of the security interest granted to it
pursuant to the Security Agreement, and authorizes Miravant to file the
California Form UCC-3 delivered by Pharmacia pursuant to Section 3(a) above
in the Office of the Secretary of State of California, and to take such
other actions as shall be necessary or desirable to evidence the release
and termination of such security interest.
5. With effect as of and following the Effective Date, Miravant, for itself
and its stockholders, officers, directors, employees, agents, assigns,
successors, representatives, direct and indirect parent companies, direct
and indirect Subsidiaries and other Affiliates (collectively, the
"Releasing Miravant Entities") hereby releases, discharges, and covenants
not to xxx or bring or maintain any suit, claim, action or bring any
proceeding against Pharmacia, any of its stockholders, officers, directors,
employees, agents, assigns, successors, representatives (including, without
limitation, financial advisors and counsel), direct or indirect parent
companies, direct or indirect Subsidiaries or other Affiliates from,
against or regarding any and all claims, demands, awards, damages, suits,
causes of action, losses, liabilities or expenses of any kind or character,
whether known or unknown (collectively "Claims") which the Releasing
Miravant Entities now have, may have or ever had, which arise out of or in
connection with any transaction, circumstances, actions, failures to act or
other matters whatsoever existing on or at any time prior to the Effective
Date, other than Claims which arise out of or in connection with a breach
or alleged breach of this Agreement.
6. With effect as of and following the Effective Date, Pharmacia, for itself
and its stockholders, officers, directors, employees, agents, assigns,
successors, representatives, direct and indirect parent companies, direct
and indirect Subsidiaries and other Affiliates (collectively, the
"Releasing Pharmacia Entities") hereby releases, discharges, and covenants
not to xxx or bring or maintain any suit, claim, action or bring any
proceeding against Miravant, any of its stockholders, officers, directors,
employees, agents, assigns, successors, representatives (including, without
limitation, financial advisors and counsel), direct or indirect parent
companies, direct or indirect Subsidiaries or other Affiliates from,
against or regarding any and all Claims which the Releasing Pharmacia
Entities now have, may have or ever had, which arise out of or in
connection with any transaction, circumstances, actions, failures to act or
other matters whatsoever existing on or at any time prior to the Effective
Date.
7. Each of the parties acknowledges and agrees that if any fact regarding the
subject matter underlying this Agreement is found hereafter to be other
than, or different from, any fact now believed to be true, such party
expressly accepts and assumes the risk of such possible difference(s) in
fact and agrees that this Agreement shall be, and remain, effective,
notwithstanding such difference(s) in fact(s). Each of the parties
acknowledges that it is familiar with the provisions of Section 1542 of the
California Civil Code and expressly agrees that the waivers and releases
set forth above constitute a waiver and release of any rights or benefits
that may arise thereunder, to the full extent that such rights or benefits
may be waived. Section 1542 of the California Civil Code states as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor." Each of the parties expressly acknowledges that the effect and
import of this provision has been fully explained by such party's own
counsel and that this Agreement is entered into knowingly and voluntarily,
without duress or undue influence, in consideration for the promises,
obligations and rights set forth herein.
8. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument.
9. Each and every right granted to the Pharmacia Entities and their
Subsidiaries and Affiliates hereunder or under any other document delivered
in connection herewith, or allowed to such parties by law or equity, shall
be cumulative and not exclusive and may be exercised from time to time. No
failure on the part of any such party to exercise, and no delay in
exercising, any right will operate as a waiver thereof, nor will any single
or partial exercise by any such party of any right preclude any other or
future exercise thereof or the exercise of any other right.
10. 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
herein shall not in any way be affected or impaired thereby.
11. Each party acknowledges that one party will have no adequate remedy at law
if the other party fails to perform any of its obligations under this
Agreement. In such event, each party agrees that the other party shall have
the right, in addition to any other rights it may have, to specific
performance of this Agreement and agrees to take no action to prevent the
other party's seeking such specific performance as a remedy.
12. The parties hereto agree that they will advise and confer with each other
prior to the public issuance of any reports, statements or releases
pertaining to this Agreement, the transactions contemplated hereby, or the
implementation hereof, and obtain the written consent of the other party
hereto for all such publicly disseminated information issued by such party
prior to the close of the transactions contemplated in this Agreement.
Notwithstanding any provision of this Agreement to the contrary, no party
hereto will disseminate publicly nor deliver to any third party any press
release or other significant written statement that references the name of
any other party hereto or any of its Affiliates or that could reflect
negatively on any other party hereto without the specific, written consent
of such other party, except as required by law (as advised in writing by
counsel).
13. This Agreement 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.
14. Any defined terms used in this Agreement shall, unless otherwise stated,
have the meaning ascribed to such terms in the Modification Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be fully
executed as of the date first above written.
PHARMACIA AB
By:/s/ Xxxxx Brattne
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Name: Xxxxx Brattne
Title: Director Legal Affairs
By:/s/ Zelbrant Xxxxxxxxx
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Name:Zelbrant Xxxxxxxxx
Title: Pharmacia AB
MIRAVANT MEDICAL TECHNOLOGIES
By:/s/ Xxxx X. Xxxxxxx
----------------------
Xxxx X. Xxxxxxx
Chief Executive Officer
Exhibit A
to August , 2003 Termination and Release Agreement
AMENDMENT TO WARRANT AGREEMENT AND WARRANTS
Exhibit B
to August , 2003 Termination and Release Agreement
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
