EXHIBIT G
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 18, 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 1.01. 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 2.01. 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
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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 to 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
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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 2.02. 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
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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 2.03. 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 2.04. 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
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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
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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
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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 2.05. 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
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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 2.06. 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
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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 2.07. 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
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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 2.08. 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
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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 2.09. 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
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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 2.10. 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 3.01. 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 3.02. 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 3.03. 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
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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 3.04. 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 3.05. 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
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Purchaser of any right preclude any other or future exercise thereof or the
exercise of any other right.
Section 3.06. 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
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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
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pursuant to the terms of this Agreement may be given by telecopy.
Section 3.07. 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 3.08. 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 3.09. 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 3.10. 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 3.11. 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
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performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
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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: /s/ Xxxx X. Xxxxxxx
--------------------------------
Title: Chief Financial Officer
PHARMACIA & UPJOHN, INC.
By: /s/ Mats Pettersson
--------------------------------
Title: Senior Vice President
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