SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT ("Agreement") is entered into as of
_______________, 1997, by and between MIRAVANT MEDICAL TECHNOLOGIES, a
Delaware corporation (the "Company"), with headquarters located at 0000
Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 and the purchaser (the
"Purchaser") set forth on the execution pages hereof, with regard to the
following:
RECITALS
A. The Company and Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration
afforded by the provisions of Regulation D ("Regulation D"), as promulgated
by the United States Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act").
B. Purchaser desires to (a) purchase, upon the terms and conditions
stated in this Agreement, shares of the Company's Common Stock, par value
$.01 per share (the "Common Stock"), and (b) to receive, in consideration for
such purchase, Stock Purchase Warrants (the "Warrants"), in the form attached
hereto as Exhibit A, to acquire shares of Common Stock. The shares of Common
Stock issuable upon exercise of or otherwise pursuant to the Warrants are
referred to herein as "Warrant Shares". The shares of Common Stock issued to
the Purchaser hereunder (exclusive of the Warrant Shares) are referred to
herein as the "Common Shares." The Common Shares, the Warrants, and the
Warrant Shares are collectively referred to herein as the "Securities."
C. Contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration
Rights Agreement in the form attached hereto as Exhibit B (the "Registration
Rights Agreement"), pursuant to which the Company has agreed to provide
certain registration rights under the Securities Act, the rules and
regulations promulgated thereunder and applicable state securities laws.
D. Contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Lock-Up
Agreement in the form attached hereto as Exhibit C (the "Lock-Up Agreement"),
pursuant to which each Purchaser has agreed to limit the disposition of the
Common Shares purchased by it hereunder in accordance with the terms
specified in such agreement, as well as the Warrant Shares.
AGREEMENTS
NOW, THEREFORE, in consideration of their respective promises contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Purchaser hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF COMMON STOCK
1.1 Purchase of Common Stock. Subject to the terms and conditions of
this Agreement, the issuance, sale and purchase of the Common Shares shall be
consummated in a "Closing". The purchase price (the "Purchase Price") per
share of Common Stock shall be $50.00. On the date of the Closing, subject
to the satisfaction or waiver of the conditions set forth in Articles VI and
VII, the Company shall issue and sell to each Purchaser, and each Purchaser
severally agrees to purchase from the Company, the number of shares of Common
Stock set forth on the signature page executed by such Purchaser. Each
Purchaser's obligation to purchase Common Shares hereunder is distinct and
separate from each other
Purchaser's obligation to purchase, and no Purchaser shall be required to
purchase hereunder more than the number of Common Shares set forth on such
Purchaser's signature page. The obligations of the Company with respect to
each Purchaser shall be separate from the obligations of each other Purchaser
and shall not be conditioned as to any Purchaser upon the performance of
obligations of any other Purchaser.
1.2 Form of Payment. Each Purchaser shall pay the aggregate Purchase
Price for the Common Shares being purchased by such Purchaser by wire
transfer to the account designated by the Company.
1.3 Closing Date. Subject to the satisfaction (or waiver) of the
conditions set forth in Articles VI and VII below, the date and time of the
issuance, sale and purchase of the Common Shares and Warrants pursuant to
this Agreement shall be at 10:00 a.m. California time, on ____________, 1997.
1.4 Warrants. In consideration of the purchase by Purchaser of the
Common Shares, the Company shall at the Closing issue to each Purchaser, in
the aggregate, Warrants to acquire, for each One Thousand (1,000) Common
Shares purchased by such Purchaser hereunder, (a) Five Hundred (500) shares
of Common Stock at an exercise price of $55.00 per share of Common Stock and
(b) Five Hundred (500) shares of Common Stock at an exercise price of $60.00
per share of Common Stock.
ARTICLE II
PURCHASER'S REPRESENTATIONS AND
WARRANTIES
Each Purchaser represents and warrants as of the date hereof and as of
the Closing, severally and solely with respect to itself and its purchase
hereunder and not with respect to any other Purchaser or the purchase
hereunder by any other Purchaser (and no Purchaser shall be deemed to make or
have any liability for any representation or warranty made by any other
Purchaser), to the Company as set forth in this Article II. No Purchaser
makes any other representations or warranties, express or implied, to the
Company in connection with the transactions contemplated hereby and any and
all prior representations and warranties, if any, which may have been made by
a Purchaser to the Company in connection with the transactions contemplated
hereby shall be deemed to have been merged in this Agreement and any such
prior representations and warranties, if any, shall not survive the execution
and delivery of this Agreement.
2.1 Investment Purpose. Purchaser is purchasing the Common Shares and
the Warrants for Purchaser's own account for investment only and not with a
view toward or in connection with the public sale or distribution thereof.
Purchaser will not, directly or indirectly, offer, sell, pledge (subject to
Section 4.11) or otherwise transfer its Common Shares or Warrants or any
interest therein except pursuant to transactions that are exempt from the
registration requirements of the Securities Act and/or sales registered under
the Securities Act. Purchaser understands that Purchaser must bear the
economic risk of this investment indefinitely, unless the Securities are
registered pursuant to the Securities Act and any applicable state securities
laws or an exemption from such registration is available, and that the
Company has no present intention of registering any such Securities other
than as contemplated by the Registration Rights Agreement. By making the
representations in this Section 2.1, Purchaser does not agree to hold the
Securities for any minimum or other specific term (except as provided in the
Lock-Up Agreement) and reserves the right to dispose of the Securities at any
time in accordance with or pursuant to a registration statement or an
exemption from registration under the Securities Act and any applicable state
securities laws.
2.2 Accredited Investor Status. Purchaser is an "accredited investor"
as that term is defined in Rule 501(a) of Regulation D.
2.3 Reliance on Exemptions. Purchaser understands that the Common
Shares and Warrants are being offered and sold to Purchaser in reliance upon
specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and Purchaser's compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of Purchaser to acquire
the Common Shares and Warrants.
2.4 Information. Purchaser or its counsel have been furnished all
materials relating to the business, finances and operations of the Company
and materials relating to the offer and sale of the Securities which have
been specifically requested by Purchaser, including without limitation the
Company's Annual Report on Form 10-K for the Year ended December 31, 1996,
Quarterly Reports on Form 10-Q for the periods ended March 31, 1997 and June
30, 1997, filed with the Securities and Exchange Commission ("SEC") and Proxy
Statement dated April 25, 1997 (such documents collectively, the "SEC
Documents"). Purchaser has been afforded the opportunity to ask questions of
the Company and has received what Purchaser believes to be complete and
satisfactory answers to any such inquiries. Neither such inquiries nor any
other due diligence investigation conducted by Purchaser or any of its
representations shall modify, amend or affect Purchaser's right to rely on
the Company's representations and warranties contained in Article III.
Purchaser understands that Purchaser's investment in the Securities involves
a high degree of risk, including without limitation the risks and
uncertainties disclosed in the SEC Documents. Purchaser acknowledges the
disclosures presented under the caption "Risk Factors" in the Company's Form
10-K filed on March 31, 1997, and the incorporation of those disclosures by
reference herein.
2.5 Governmental Review. Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities.
2.6 Transfer or Resale. Purchaser understands that (i) except as
provided in the Registration Rights Agreement, the Securities have not been
and are not being registered under the Securities Act or any state securities
laws, and may not be offered, sold, pledged (subject to Section 4.11 of this
Agreement) or otherwise transferred unless subsequently registered thereunder
or an exemption from such registration is available (which exemption the
Company expressly agrees may be established as contemplated in clauses (b)
and (c) of Section 5.1 hereof); (ii) any sale of such Securities made in
reliance on Rule 144 under the Securities Act (or a successor rule) ("Rule
144") may be made only in accordance with the terms of Rule 144 and further,
if Rule 144 is not applicable, any resale of such Securities without
registration under the Securities Act under circumstances in which the seller
may be deemed to be an underwriter (as that term is defined in the Securities
Act) may require compliance with some other exemption under the Securities
Act or the rules and regulations of the SEC thereunder in order for such
resale to be allowed, and (iii) neither the Company nor any other person is
under any obligation to register such Securities under the Securities Act or
any state securities laws or to comply with the terms and conditions of any
exemption thereunder (in each case, other than pursuant to this Agreement or
the Registration Rights Agreement).
2.7 Legends. Purchaser understands that, subject to Article V hereof,
the certificates for the Warrants and, until such time as the Common Shares
and Warrant Shares have been registered under the Securities Act as
contemplated by the Registration Rights Agreement or otherwise may be sold by
Purchaser pursuant to Rule 144 (subject to and in accordance with the
procedures specified in Article V hereof), the certificates for the Common
Shares and Warrant Shares and the Warrants will bear a restrictive legend
(the "Legend") in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES. THE SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED OR
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS OR UNLESS
OFFERED, SOLD OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
2.8 Authorization: Enforcement. This Agreement and the Registration
Rights Agreement have been duly and validly authorized, executed and
delivered on behalf of Purchaser and are valid and binding agreements of
Purchaser enforceable in accordance with its respective terms, except to the
extent that such validity or enforceability may be subject to or affected by
any bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of,
creditors' rights or remedies of creditors generally, or by other equitable
principles of general application.
2.9 Residency. Purchaser is a resident of the jurisdiction set forth
under Purchaser's name on the signature page hereto executed by Purchaser.
2.10 Additional Financing. Each Purchaser acknowledges that the Company
expects to close, within 30 days of Closing, the sale of Common Stock and
warrants in addition to the Common Shares sold hereunder with at a sales
price of $50.00 per share at the time of such sale of up to $____________
(the "Additional Financing") in accordance with the terms attached hereto as
Schedule 2.10 and otherwise on substantially the same terms and conditions as
the financing hereunder. Each Purchaser acknowledges that the Company has
provided no assurances that the Additional Financing will be completed.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Purchaser as of the date hereof
and as of the Closing that:
3.1 Organization and Qualification. Each of the Company and its
subsidiaries is a corporation duly organized and existing in good standing
under the laws of the jurisdiction in which it is incorporated, and has the
requisite corporate power to own its properties and to carry on its business
as now being conducted. The Company and each of its subsidiaries is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction where the failure so to qualify or be in good standing
would have a Material Adverse Effect. "Material Adverse Effect" means any
effect which, individually or in the aggregate with all other effects,
reasonably would be expected to be materially adverse to the business,
operations, properties, financial condition, operating results or prospects
of the Company and its subsidiaries, taken as a whole on a consolidated basis
or on the transactions contemplated hereby.
3.2 Authorization; Enforcement. (a) The Company has the requisite
corporate power and authority to enter into and perform this Agreement, the
Lock-Up Agreement and the Registration Rights Agreement, and to issue, sell
and perform its obligations with respect to the Common Shares and Warrants in
accordance with the terms hereof and thereof and the terms of the Common
Shares and Warrants, and to issue Warrant Shares in accordance with the terms
and conditions of the Warrants; (b) the execution, delivery and performance
of this Agreement, the Lock-Up Agreement and the Registration Rights
Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby (including, without limitation, the issuance
of the Common Shares and the Warrants, and the issuance and reservation for
issuance of the Warrant Shares) have been duly authorized by all necessary
corporate action and, except as set forth on Schedule 3.2 hereof, no further
consent or authorization of the Company, its board of directors, or its
stockholders or any other person, body or agency is required with respect to
any of the transactions contemplated hereby or thereby (whether under rules
of the Nasdaq National Market ("Nasdaq"), the National Association of
Securities Dealers, Inc. or otherwise); (c) this Agreement, the Lock-Up
Agreement, the Registration Rights Agreement, certificates for the Common
Shares, and the Warrants have been duly executed and delivered by the
Company; and (d) this Agreement, the Registration Rights Agreement, the
Common Shares, and the Warrants constitute legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms, except (i) to the extent that such validity or
enforceability may be subject to or affected by any bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting
generally the enforcement of, creditors' rights or remedies of creditors
generally, or by other equitable principles of general application, and (ii)
as rights to indemnity and contribution under the Registration Rights
Agreement may be limited by Federal or state securities laws.
3.3 Capitalization. The capitalization of the Company as of the date
hereof, including the authorized capital stock, the number of shares issued
and outstanding, the number of shares reserved for issuance pursuant to the
Company's stock option plans, the number of shares reserved for issuance
pursuant to securities (other than the Warrants) exercisable for, or
convertible into or exchangeable for, any shares of Common Stock and the
number of shares to be reserved for issuance upon exercise of the Warrants is
set forth on Schedule 3.3. All of such outstanding shares of capital stock
have been, or upon issuance will be, validly issued, fully paid and
nonassessable. No shares of capital stock of the Company (including the
Common Shares and the Warrant Shares) are subject to preemptive rights or any
other similar rights of the stockholders of the Company or any liens or
encumbrances. Except as disclosed in Schedule 3.3, as of the date of this
Agreement, (i) there are no outstanding options, warrants, scrip, rights to
subscribe for, calls or commitments of any character whatsoever relating to,
or securities or rights convertible into or exercisable or exchangeable for,
any shares of capital stock of the Company or any of its subsidiaries, or
contracts, commitments, understandings or arrangements by which the Company
or any of its subsidiaries is or may become bound to issue additional shares
of capital stock of the Company or any of its subsidiaries, (ii) issuance of
the Securities will not trigger antidilution rights for any other outstanding
or authorized securities of the Company, and (iii) there are no agreements or
arrangements under which the Company or any of its subsidiaries is obligated
to register the sale of any of its or their securities under the Securities
Act (except the Registration Rights Agreement). The Company has furnished to
Purchaser true and correct copies of the Company's Certificate of
Incorporation as in effect on the date hereof ("Certificate of
Incorporation"), and the Company's By-laws as in effect on the date hereof
(the "By-laws"). The Company has set forth on Schedule 3.3 all instruments
and agreements (other than the Certificate of Incorporation and By-laws)
governing securities convertible into or exercisable or exchangeable for
Common Stock of the Company (and the Company shall provide to Purchaser
copies thereof upon the request of Purchaser). The Company shall provide
Purchaser with a written update of this representation signed by the
Company's Chief Executive Officer or Chief Financial Officer on behalf of the
Company as of the date of the Closing.
3.4 Issuance of Shares. The Common Shares and Warrant Shares are duly
authorized and reserved for issuance, and, in the case of the Warrants, upon
the exercise of the Warrants in accordance with the terms thereof, as
applicable, will be validly issued, fully paid and non-assessable, and free
from all taxes, liens, claims and encumbrances imposed or suffered by the
Company and will not be subject to preemptive rights or other similar rights
of stockholders of the Company. The Common Shares and Warrants are duly
authorized and validly issued, fully paid and nonassessable, and free from
all liens, claims and encumbrances imposed or suffered by the Company and are
not and will not be subject to preemptive rights or other similar rights of
stockholders of the Company.
3.5 No Conflicts. The execution, delivery and performance of this
Agreement and the Registration Rights Agreement by the Company, and the
consummation by the Company of transactions contemplated hereby and thereby
(including, without limitation, the issuance and reservation for issuance, as
applicable, of the Common Shares, Warrants, and Warrant Shares) do not and
will not (a) result in a violation of the Certificate of Incorporation or
By-laws or (b) conflict with, or constitute a default (or an event which,
with notice or lapse of time or both, would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation
of, any agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including U.S. federal and state
securities laws and regulations and the rules and regulations of NASDAQ)
applicable to the Company or any of its subsidiaries, or by which any
property or asset of the Company or any of its subsidiaries, is bound or
affected (except for such possible conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect). Neither
the Company nor any of its subsidiaries is in violation of its Certificate of
Incorporation or other organizational documents, and neither the Company nor
any of its subsidiaries, is in default (and no event has occurred which has
not been
waived which, with notice or lapse of time or both, would put the Company or
any of its subsidiaries in default) under, nor has there occurred any event
giving others (with notice or lapse of time or both) any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its subsidiaries is a
party, except for possible violations, defaults or rights as would not,
individually or in the aggregate, have a Material Adverse Effect. The
businesses of the Company and its subsidiaries are not being conducted, and
shall not be conducted so long as a Purchaser owns any of the Securities, in
violation of any law, ordinance or regulation of any governmental entity,
except for possible violations the sanctions for which either individually or
in the aggregate would not have a Material Adverse Effect. Except as set
forth on Schedule 3.5, or except (A) such as may be required under the
Securities Act in connection with the performance of the Company's
obligations under the Registration Rights Agreement, (B) filing of a Form D
with the SEC, and (C) compliance with the state securities or Blue Sky laws
of applicable jurisdictions, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with,
any court or governmental agency or any regulatory or self-regulatory agency
in order for it to execute, deliver or perform any of its obligations under
this Agreement, the Lock-Up Agreement or the Registration Rights Agreement or
to perform its obligations in accordance with the terms hereof or thereof.
The Company is not in violation of the listing requirements of Nasdaq and
does not reasonably anticipate that the Common Stock will be delisted by
Nasdaq for the foreseeable future.
3.6 SEC Documents. Except as disclosed in Schedule 3.6, since December
31, 1995, the Company has timely filed all reports, schedules, forms,
statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (all of the foregoing filed after
December 31, 1995 and all exhibits included therein and financial statements
and schedules thereto and documents incorporated by reference therein, being
referred to herein as the "SEC Documents"). The Company has delivered to each
Purchaser true and complete copies of the SEC Documents, except for exhibits,
schedules and incorporated documents. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time
they were filed with the SEC, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. None of the
statements made in any such SEC Documents which is required to be updated or
amended under applicable law has not been so updated or amended. The
financial statements of the Company included in the SEC Documents have been
prepared in accordance with U.S. generally accepted accounting principles,
consistently applied, and the rules and regulations of the SEC during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they do not include footnotes or are condensed or
summary statements) and present accurately and completely the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments). Except as set forth in a manner clearly
evident to a sophisticated institutional investor in the financial statements
or the notes thereto of the Company included in the SEC Documents, the
Company has no liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business consistent with past
practice subsequent to the date of such financial statements and (ii)
obligations under contracts and commitments incurred in the ordinary course
of business consistent with past practice and not required under generally
accepted accounting principles to be reflected in such financial statements,
in each case of clause (i) and (ii) next above which, individually or in the
aggregate, are not material to the financial condition, business, operations,
properties, operating results or prospects of the Company and its
subsidiaries. To the extent required by the rules of the SEC applicable
thereto, the SEC Documents contain a complete and accurate list of all
material undischarged written or oral contracts, agreements, leases or other
instruments to which the Company or any subsidiary is a party or by which the
Company or any subsidiary is bound or to which any of the properties or
assets of the Company or any subsidiary is subject (each a "Contract").
Except as set forth in Schedule 3.6, none of the Company, its subsidiaries
or, to the best knowledge of the Company,
any of the other parties thereto, is in breach or violation of any Contract,
which breach or violation would have a Material Adverse Effect. No event,
occurrence or condition exists which, with the lapse of time, the giving of
notice, or both, would become a default by the Company or its subsidiaries
thereunder which would have a Material Adverse Effect. The Company has not
provided to any Purchaser any material non-public information or any other
information which, according to applicable law, rule or regulation, should
have been disclosed publicly by the Company but which has not been so
disclosed.
3.7 Absence of Certain Changes. Since December 31, 1996, there has
been no material adverse change and no material adverse development in the
business, properties, operations, financial condition, results of operations
or prospects of the Company, except as disclosed in Schedule 3.7 or clearly
evident to a sophisticated institutional investor from the SEC Documents.
3.8 Absence of Litigation. Except as disclosed in Schedule 3.8 or as
clearly evident to a sophisticated institutional investor from the SEC
Documents, there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board, government agency, or self-regulatory
organization or body pending or, to the knowledge of the Company or any of
its subsidiaries, threatened against or affecting the Company, any of its
subsidiaries, or any of their respective directors or officers in their
capacities as such, which could reasonably be expected to result in an
unfavorable decision, ruling or finding which would have a Material Adverse
Effect or would adversely affect the transactions contemplated by this
Agreement or any of the documents contemplated hereby or which would
adversely affect the validity or enforceability of, or the authority or
ability of the Company to perform its obligations under, this Agreement or
any of such other documents. There are no facts known to the Company which,
if known by a potential claimant or governmental authority, could reasonably
be expected to give rise to a claim or proceeding which, if asserted or
conducted with results unfavorable to the Company or any of its subsidiaries,
could reasonably be expected to have a Material Adverse Effect.
3.9 Disclosure. No information relating to or concerning the Company
set forth in this Agreement contains an untrue statement of a material fact.
No information relating to or concerning the Company set forth in any of the
SEC Documents contains a statement of material fact that was untrue as of the
date such SEC Document was filed with the SEC. The Company has not omitted to
state a material fact necessary in order to make the statements made herein
or therein, in light of the circumstances under which they were made, not
misleading. Except for the execution and performance of this Agreement, no
material fact (within the meaning of the federal securities laws of the
United States and of applicable state securities laws) exists with respect to
the Company which has not been publicly disclosed.
3.10 Acknowledgment Regarding Purchaser's Purchase of the
Securities. The Company acknowledges and agrees that Purchaser is not acting
as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement or the transactions contemplated
hereby, that this Agreement and the transaction contemplated hereby, and the
relationship between each Purchaser and the Company, are "arms-length", and
that any statement made by Purchaser (except as set forth in Article II), or
any of its representatives or agents, in connection with this Agreement and
the transactions contemplated hereby is not advice or a recommendation, is
merely incidental to Purchaser's purchase of the Securities and has not been
relied upon as such in any way by the Company, its officers or directors. The
Company further represents to Purchaser that the Company's decision to enter
into this Agreement and the transactions contemplated hereby have been based
solely on an independent evaluation by the Company and its representatives.
3.11 S-3 Registration. The Company is currently eligible to
register the resale by Purchaser of the Warrant Shares and to register the
Common Shares on a registration statement on Form S-3 under the Securities
Act.
3.12 No General Solicitation. Neither the Company nor any distributor
participating on the Company's behalf in the transactions contemplated hereby
(if any) nor any person acting for the Company,
or any such distributor, has conducted any "general solicitation," as
described in Rule 502(c) under Regulation D, with respect to any of the
Securities being offered hereby.
3.13 No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers
to buy any security under circumstances that would prevent the parties hereto
from consummating the transactions contemplated hereby pursuant to an
exemption from the registration under the Securities Act pursuant to the
provisions of Regulation D. The transactions contemplated hereby are exempt
from the registration requirements of the Securities Act, assuming the
accuracy of the representations and warranties herein contained of each
Purchaser.
3.14 No Brokers. The Company has taken no action which would give
rise to any claim by any person for brokerage commissions, finder's fees or
similar payments by Purchaser relating to this Agreement or the transactions
contemplated hereby.
3.15 Intellectual Property. Each of the Company and its
subsidiaries owns or possesses adequate and enforceable rights to use all
material patents, patent applications, trademarks, trademark applications,
trade names, service marks, copyrights, copyright applications, licenses,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) and other
similar rights and proprietary knowledge (collectively, "Intangibles") used
or necessary for the conduct of its business as now being conducted and as
described in the Company's Annual Report on Form 10-K for its most recently
ended fiscal year. Neither the Company nor any subsidiary of the Company
infringes on or is in conflict with any right of any other person with
respect to any Intangibles nor is there any claim of infringement made by a
third party against or involving the Company or any of its subsidiaries,
which infringement, conflict or claim, individually or in the aggregate,
could reasonably be expected to result in an unfavorable decision, ruling or
finding which would have a Material Adverse Effect.
3.16 Key Employees. Each Key Employee (as defined below) is
currently serving the Company in the capacity disclosed in Schedule 3.16. No
Key Employee, to the best of the knowledge of the Company and its
subsidiaries, is, or is now expected to be, in violation of any material term
of any employment contract, confidentiality, disclosure or proprietary
information agreement, non-competition agreement, or any other contract or
agreement or any restrictive covenant, and the continued employment of each
Key Employee does not subject the Company or any of its subsidiaries to any
liability with respect to any of the foregoing matters. No Key Employee has,
to the best of the knowledge of the Company and its subsidiaries, any
intention to terminate his employment with, or services to, the Company or
any of its subsidiaries. "Key Employee" means each of Xxxx X. Xxxxxxx and
Xxxxx X. Xxx.
3.17 Rights Plan. The Company does not have in effect a shareholders
rights plan or similar plan in the nature of a "poison pill." If the Company
adopts such a plan, the Purchaser's Common Shares, Warrant Shares and Shares
receivable pursuant to Section 5.3 will not be deemed to trigger such plan.
ARTICLE IV
COVENANTS
4.1 Best Efforts. The parties shall use their best efforts to timely
satisfy each of the conditions described in Articles VI and VII of this
Agreement.
4.2 Securities Laws. The Company agrees to file a Form D with respect
to the Securities with the SEC as required under Regulation D and to provide
a copy thereof to each Purchaser within fifteen (15) days after the date of
Closing. The Company agrees to file a Form 8-K disclosing this Agreement and
the transactions contemplated hereby with the SEC within ten (10) business
days following the date of Closing. The Company shall, on or prior to the
date of Closing, take such action as is necessary to sell the Securities to
each Purchaser under applicable securities laws of the states of the United
States,
and shall provide evidence of any such action so taken to each Purchaser on
or prior to the date of the Closing.
4.3 Reporting Status. So long as any Purchaser beneficially owns any
of the Securities, (a) the Company shall timely file all reports required to
be filed with the SEC pursuant to the Exchange Act, and the Company shall not
terminate its status as an issuer required to file reports under the Exchange
Act even if the Exchange Act or the rules and regulations thereunder would
permit such termination, and (b) the Company will maintain its ability to
register its Common Stock on Form S-3.
4.4 Restriction on Certain Issuances of Securities. (a) For a period
of one year following the date of Closing, the Company shall not issue or
agree to issue, (except (i) to Purchaser pursuant to this Agreement, (ii)
pursuant to any employee stock option, stock purchase or restricted stock
plan of the Company in effect on the date hereof up to the aggregate amounts
set forth on Schedule 4.5 hereto, (iii) pursuant to any existing security,
option, warrant, scrip, call or commitment or right in each case or disclosed
on Schedule 3.3 hereof, (iv) pursuant to any grant or exercise of any
consultant warrants or options granted or awarded in the reasonable
discretion of the Board of Directors, (v) beginning ninety (90) days
following the date of the Closing, pursuant to a strategic joint venture or
partnership entered into by the Company, undertaken at the reasonable
discretion of the Board of Directors of the Company, the primary purpose of
which is not to raise equity capital or (vi) the Additional Financing
reflected in Section 2.10), any equity securities of the Company (or any
security convertible into or exercisable or exchangeable, directly or
indirectly, for equity securities of the Company) if such securities are
issued at a price (or in the case of securities convertible into or
exercisable or exchangeable, directly or indirectly, for Common Stock such
securities provide for a conversion, exercise or exchange price) which may be
less than the current market price for Common Stock on the date of issuance
(in the case of Common Stock) or the date of conversion, exercise or exchange
(in the case of securities convertible into or exercisable or exchangeable,
directly or indirectly, for Common Stock).
4.5 Right of First Offer. From the date hereof until the day following
the six-month anniversary of the date of the Closing, the Company shall not
issue or sell, or agree to issue or sell any equity securities of the Company
or any of its subsidiaries (or any security convertible into or exercisable
or exchangeable, directly or indirectly, for equity securities of the Company
or any of its subsidiaries) ("Future Offerings") unless the Company shall
have first delivered to each Purchaser at least ten (10) business days prior
to the closing of such Future Offering, written notice describing the
proposed Future Offering, including the terms and conditions thereof, and
providing each Purchaser and its affiliates an option during the ten (10)
business day period following delivery of such notice to purchase up to the
full amount of the securities being offered in the Future Offering on the
same terms as contemplated by such Future Offering [on a pro-rata basis to
all other purchasers of the Company's Common Stock pursuant to the Agreement
between the Company and certain investors for $__________ and the Additional
Financing] (the limitations referred to in this sentence are collectively
referred to as the "Capital Raising Limitations"); provided that if
oversubscribed, the Future Offering will be allocated to the Purchaser pro
rata in proportion to the amount of its initial purchase of Securities
hereunder. The Capital Raising Limitations shall not apply to the Additional
Financing referred to in Section 2.10 or any transaction involving issuances
of securities in connection with a merger, consolidation, joint venture,
asset acquisition, license agreement, strategic alliance, grant or exercise
of options to or by employees, consultants or directors. In addition, the
Capital Raising Limitations also shall not apply to the issuance of
securities upon exercise or conversion of the Company's options, warrants or
other convertible securities outstanding as of the date hereof, the grant of
additional options or warrants, or the issuance of additional securities,
under any employee, director or consulting stock option, stock purchase or
restricted stock plan of the Company or any firm commitment underwritten
public offering. This Section 4.5 shall not limit the Company's obligations
under Section 4.4 above. The Company shall prohibit any Common Stock or other
security issued by the Company subject to the Capital Raising Limitations but
not purchased by any Purchaser from being converted, exercised or resold
until the day following the six-month anniversary of the date of the Closing
and shall take all actions necessary (including, without limitation, the
issuance of a stop transfer order) to effect such prohibition.
4.6 Information. The Company agrees to send the following reports to
each Purchaser until such Purchaser transfers, assigns or sells all of its
Securities in transactions in which the transferee is (unless such transferee
is an affiliate of the Company) not subject to securities law resale
restrictions: (a) within three (3) business days after the filing with the
SEC, a copy of its Annual Report on Form 10-K, its Quarterly Reports on Form
10-Q, any proxy statements and any Current Reports on Form 8-K; and (b)
within one (1) business day after release, copies of all press releases
issued by the Company or any of its subsidiaries. The Company further agrees
to promptly provide to any Purchaser any information with respect to the
Company, its properties, or its business or Purchaser's investment as such
Purchaser may reasonably request; provided, however, that the Company shall
not be required to give any Purchaser any material nonpublic information. If
any information requested by a Purchaser from the Company contains material
nonpublic information, the Company shall inform the Purchaser in writing that
the information requested contains material nonpublic information and shall
in no event provide such information to Purchaser without the express written
consent of such Purchaser after being so informed.
4.7 Listing. The Company shall continue the uninterrupted listing and
trading of its Common Stock on the Nasdaq or the New York Stock Exchange or
the American Stock Exchange; and comply in all respects with the Company's
reporting, filing and other obligations under the By-laws or rules of the
Nasdaq or such Exchange, as applicable.
4.8 Prospectus Delivery Requirement. Each Purchaser understands that
the Securities Act may require delivery of a prospectus relating to the
Common Stock in connection with any sale thereof pursuant to a registration
statement under the Securities Act covering the resale by such Purchaser of
the Common Stock being sold, and each Purchaser shall comply with the
applicable prospectus delivery requirements of the Securities Act in
connection with any such sale.
4.9 Corporate Existence. So long as any Purchaser beneficially owns
any Warrants or Common Stock, the Company shall maintain its corporate
existence, except in the event of a merger, consolidation or sale of all or
substantially all of the Company's assets, as long as the surviving or
successor entity in such transaction (i) assumes the Company's obligations
hereunder and under the agreements and instruments entered into in connection
herewith and (ii) is a publicly traded corporation whose common stock is
listed for trading on the NASDAQ, the New York Stock Exchange or the American
Stock Exchange.
4. 10 Hedging Transactions. No Purchaser has an existing short
position with respect to the Common Shares. Each Purchaser agrees not to,
directly or indirectly, enter into any short sales with respect to the Common
Shares prior to the date on which such Purchaser is entitled to sell,
transfer or dispose pursuant to the Lock-Up Agreement the number of shares of
Common Stock as to which such Purchaser proposes to establish a short
position. This Section 4.10 shall not prohibit Purchaser from at any time
entering into options contracts with respect to the Common Shares, including
puts and calls including delivering Common Stock in satisfaction of any
exercised options. Purchaser shall not, however, be permitted to deliver
Common Shares in satisfaction of any exercised options (unless, at the time
of such delivery, Disposition (as defined in the Lock-Up Agreement) of such
Common Shares is permitted under the Lock-Up Agreement).
4.11 Pledging and Margining. Notwithstanding anything in this Agreement
to the Contrary, Purchaser may pledge, margin or otherwise encumber the
Common Shares unless the result of any such activity would be that such
Common Shares would be available for lending and/or borrowing in connection
with short sales of the Common Stock by any third party.
4.12 Cash Maintenance Requirement. From the date of the Closing through
the first anniversary of the date of the Closing, the Company shall maintain,
as of the end of each fiscal quarter of the Company, cash or cash equivalents
(as reflected in the Company's quarterly financial statements) equal to at
least Twenty Million Dollars ($20,000,000).
4.13 Use of Proceeds. The Company will use the proceeds of the sale of
the Securities for working capital or such other purposes as management or
the Company's Board of Directors shall determine.
4.14 Management Lock-Up. The Company will extend its current agreements
so that no person identified on Schedule 4.14 will be permitted to sell
shares of Common Stock prior to the Anniversary Date.
ARTICLE V
LEGEND REMOVAL, TRANSFER, CERTAIN SALES, ADDITIONAL SHARES
5.1 Removal of Legend. The Legend shall be removed and the Company
shall issue a certificate without such Legend to the holder of any Security
upon which it is stamped, and a certificate for a security shall be
originally issued without the Legend, if, (a) the sale of such Security is
registered under the Securities Act, (b) such holder provides the Company
with an opinion of counsel, in form, substance and scope customary for
opinions of counsel in comparable transactions and reasonably satisfactory to
the Company and its counsel (the reasonable cost of which shall be borne by
the Company if neither an effective registration statement under the
Securities Act or Rule 144 is available in connection with such sale) to the
effect that a public sale or transfer of such Security may be made without
registration under the Securities Act pursuant to an exemption from such
registration requirements or (c) such Security can be sold pursuant to Rule
144 and the holder provides the Company with reasonable assurances that the
Security can be so sold without restriction or (d) such Security can be sold
pursuant to Rule 144(k). Each Purchaser agrees to sell all Securities,
including those represented by a certificate(s) from which the Legend has
been removed, or which were originally issued without the Legend, pursuant to
an effective registration statement, in accordance with the manner of
distribution described in such registration statement and to deliver a
prospectus in connection with such sale, or in compliance with an exemption
from the registration requirements of the Securities Act. In the event the
Legend is removed from any Security or any Security is issued without the
Legend and the Security is to be disposed of other than pursuant to the
registration statement or pursuant to Rule 144, then prior to, and as a
condition to, such disposition such Security shall be relegended as provided
herein in connection with any disposition if the subsequent transfer thereof
would be restricted under the Securities Act. Also, in the event the Legend
is removed from any Security or any Security is issued without the Legend and
thereafter the effectiveness of a registration statement covering the resale
of such Security is suspended or the Company determines that a supplement or
amendment thereto is required by applicable securities laws, then upon
reasonable advance notice to Purchaser holding such Security, the Company may
require that the Legend be placed on any such Security that cannot then be
sold pursuant to an effective registration statement or Rule 144 or with
respect to which the opinion referred to in clause (b) next above has not
been rendered, which Legend shall be removed when such Security may be sold
pursuant to an effective registration statement or Rule 144 or such holder
provides the opinion with respect thereto described in clause (b) next above.
5.2 Transfer Agent Instructions. The Company shall instruct its transfer
agent to issue certificates, registered in the name of each Purchaser or its
nominee, for the Common Shares and for the Warrant Shares in such amounts
determined in accordance with the terms of the Warrants. Such certificates
shall bear the Legend only to the extent provided by Section 5.1 above and
the Lock-Up Agreement. The Company covenants that no instruction other than
such instructions referred to in this Article V, and stop transfer
instructions to give effect to Section 2.6 hereof in the case of the Common
Shares and Warrant Shares prior to registration of the Common Shares and
Warrant Shares under the Securities Act, will be given by the Company to its
transfer agent and that the Securities shall otherwise be freely transferable
on the books and records of the Company. Nothing in this Section shall affect
in any way each Purchaser's obligations and agreement set forth in Section
5.1 hereof to resell the Securities pursuant to an effective registration
statement and to deliver a prospectus in connection with such sale or in
compliance with an exemption from the registration requirements of applicable
securities laws. If (a) a Purchaser provides the Company with an opinion of
counsel, which opinion of counsel shall be in form, substance and scope
customary for opinions of counsel in comparable transactions and reasonably
satisfactory to the Company and its counsel (the reasonable cost of which
shall be borne by the Company if neither an effective registration statement
under the Securities Act or Rule 144 is available in connection with such
sale), to the effect that the Securities to be sold or transferred may be
sold or transferred pursuant to an exemption from registration or (b) a
Purchaser transfers Securities to an affiliate which is an accredited
investor (within the meaning of Regulation D under the Securities Act) and
which delivers to the Company in written form the same representations,
warranties and covenants made by Purchaser hereunder or pursuant to Rule 144,
the Company shall permit the transfer, and, in the case of the Common Shares
and Warrant Shares, promptly instruct its transfer agent to issue one or more
certificates in such name and in such denomination as specified by such
Purchaser. The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to a Purchaser by vitiating the intent
and purpose of the transaction contemplated hereby. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under
this Article V will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Article V, that a
Purchaser shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach and requiring immediate issuance and
transfer, without the necessity of showing economic loss and without any bond
or other security being required.
5.3 Additional Shares or Cash Payment. If on the first anniversary of the
date of the Closing (the "Anniversary Date") the 30 day average closing bid
price of the Common Stock (as reported by Bloomberg L.P.) for the period
ending on the trading day prior to the Anniversary Date (the "Anniversary
Price") is less than $50.00 (the "Closing Price"), then the Company shall,
at the Company's sole option, either:
(a) Pay to each Purchaser, within 10 days of the Anniversary Date, in
cash, an amount determined in accordance with the following formula:
P = (C - A)*S
where:
P = the aggregate payment to be made to such Purchaser, expressed in
dollars;
C = the Closing Price;
A = the Anniversary Price; and
S = the aggregate number of the Common Shares purchased by the Purchaser
and not sold or assigned (other than to an affiliate of the Purchaser)
in accordance with Section 1.2 of the Lock-Up Agreement during the
period from the date of the Closing through the Anniversary Date; or
(b) Issue, within 10 days of the Anniversary Date, to each Purchaser a
number of additional shares of Common Stock equal to the product of (i) the
dollar amount calculated pursuant to Section 5.3(a) with respect to such
Purchaser divided by (ii) the Anniversary Price.
The foregoing P, C, A and S shall be equitably adjusted to reflect the effect
of any stock dividends, stock splits, reverse stock splits, discounted equity
offerings or actions similar to any of the foregoing.
If the Company intends to satisfy its obligations under this Section 5.3
through the issuance of additional Common Stock pursuant to Section 5.3(b),
the following conditions shall apply: (u) the issuance of Common Stock will
only be permitted to the extent that such issuance will not result in any
Purchaser, or any group which such entity will be deemed under the Securities
Act to be a part of, solely as a result of the issuance of such additional
shares, the Common Shares and the Warrant Shares, having beneficial
ownership (as defined in Section 13(d) of the Securities Act) of more than
9.9% of the Common Stock; (w) Common Stock shall be listed on NASDAQ, NYSE or
AMEX; (x) the Company shall issue only freely tradable, registered and
unlegended Common Stock; (y) the Company must provide each Purchaser on or
before the Anniversary Date of its election to so issue Common Stock; and (z)
the Company must satisfy its obligations under Section 5.3 through the
issuance of Common Stock to each of the Purchaser who continues to hold
Common Shares. Notwithstanding anything in this Section 5.3 to the contrary,
no holder of any shares of Common Stock other than the initial Purchaser
signatory hereto and any permitted assignee who receives restricted
securities pursuant to Section 8.7 shall be entitled to payments or
additional shares of Common Stock from the Company pursuant to this Section
5.3. The Company will have no obligations under this Section 5.3 with
respect to the Warrants or the Warrant Shares.
ARTICLE VI
CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
6.1 Conditions to the Company's Obligation to Sell. The obligation of the
Company hereunder to issue and sell the Common Shares and Warrants to a
Purchaser at the Closing is subject to the satisfaction, as of the date of
the Closing and with respect to such Purchaser, of each of the following
conditions thereto, provided that these conditions are for the Company's sole
benefit and may be waived by the Company at any time in its sole discretion:
(i) Such Purchaser shall have executed and delivered the signature page
to this Agreement, the Registration Rights Agreement and the Lock-Up
Agreement.
(ii) Such Purchaser shall have wired to the account designated by the
Company.
(iii) The representations and warranties of such Purchaser shall be true
and correct in all material respects as of the date when made and as of the
Closing as though made at that time (except for representations and warranties
that speak as of a specific date), and such Purchaser shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or
complied with by the applicable Purchaser at or prior to the Closing.
(iv) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which restricts or prohibits the consummation of any of the
transactions contemplated by this Agreement.
ARTICLE VII
CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE
7.1 The obligation of each Purchaser hereunder to purchase the Common
Shares and Warrants to be purchased by it on the date of the Closing is
subject to the satisfaction of each of the following conditions, provided
that these conditions are for each Purchaser's sole benefit and may be waived
by such Purchaser at any time in such Purchaser's sole discretion:
(i) The Company shall have executed and delivered the signature page to
this Agreement, the Registration Rights Agreement and the Lock-Up Agreement.
(ii) The Company shall have delivered to the Purchaser's counsel duly
issued certificates for the Common Shares being so purchased by Purchaser and
Warrants being issued to such Purchaser at the Closing.
(iii) The Common Stock shall be listed on the Nasdaq and trading in the
Common Stock shall not have been suspended by the Nasdaq or the SEC or other
regulatory authority.
(iv) The representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the
Closing as though made at that time and the Company shall have performed,
satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Company at or prior to the Closing.
Purchaser shall have received a certificate, executed by the Chief Executive
Officer or Chief Financial Officer of the Company, dated as of the Closing to
the foregoing effect.
(v) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(vi) Purchaser shall have received the officer's certificate described
in Section 3.3, dated as of the Closing.
(vii) Purchaser shall have received opinions of Nida & Xxxxxxx, a
Professional Corporation, counsel to the Company, dated as of the Closing, in
the form attached hereto as Exhibit D.
ARTICLE VIII
GOVERNING LAW; MISCELLANEOUS
8.1 Governing Law: Jurisdiction. This Agreement shall be governed by and
construed in accordance with the Delaware General Corporation Law (in respect
of matters of corporation law) and the laws of the State of California (in
respect of all other matters) applicable to contracts made and to be
performed in the State of California. The parties hereto irrevocably consent
to the jurisdiction of the United States federal courts and state courts
located in the County of New Castle in the State of Delaware in any suit or
proceeding based on or arising under this Agreement or the transactions
contemplated hereby and irrevocably agree that all claims in respect of such
suit or proceeding may be determined in such courts. The Company and each
Purchaser irrevocably waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding in such forum. The Company and each
Purchaser further agrees that service of process upon the Company or such
Purchaser, as applicable, mailed by the first class mail in accordance with
Section 8.6 shall be deemed in every respect effective service of process
upon the Company or such Purchaser in any suit or proceeding arising
hereunder. Nothing herein shall affect Purchaser's right to serve process in
any other manner permitted by law. The parties hereto agree that a final
non-appealable judgment in any such suit or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on such judgment or in any
other lawful manner. The parties hereto irrevocably waive any right to a
trial by jury under applicable law.
8.2 Counterparts. This Agreement may be executed in two or more
counterparts, including, without limitation, by facsimile transmission, all
of which counterparts shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. In the event any signature page is delivered by
facsimile transmission, the party using such means of delivery shall cause
additional original executed signature pages to be delivered to the other
parties as soon as practicable thereafter.
8.3 Headings. The headings of this Agreement are for convenience of reference
and shall not form part of, or affect the interpretation of, this Agreement.
8.4 Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement
or the validity or enforceability of this Agreement in any other jurisdiction.
8.5 Entire Agreement: Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with
respect to the maters covered herein and therein and, except as specifically
set forth herein or therein, neither the Company nor any Purchaser makes any
representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived other than by an
instrument in writing signed by the party to be charged with enforcement and
no provision of this Agreement may be amended other than by an instrument in
writing signed by the Company and each Purchaser.
8.6 Notice. Any notice herein required or permitted to be given shall
be in writing and may be personally served or delivered by
nationally-recognized overnight courier or by facsimile machine confirmed
telecopy, and shall be deemed delivered at the time and date of receipt
(which shall include telephone line facsimile transmission). The addresses
for such communications shall be:
if to the Company:
Miravant Medical Technologies
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with copy to:
Nida & Xxxxxxx, a Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
if to the Purchaser:
_____________________________
_____________________________
_____________________________
Attention:
Facsimile:
If to any other Purchaser, to such address set forth under such Purchaser's
name on the signature page hereto executed by such Purchaser. Each party
shall provide notice to the other parties of any change in address.
8.7 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. Neither
the Company nor any Purchaser shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, each Purchaser may assign its rights and
obligations hereunder to any of its "affiliates," as that term is defined
under the Securities Act, without the consent of the Company so long as such
affiliate is an accredited investor (within the meaning of Regulation D under
the Securities Act) and agrees in writing to be bound by this Agreement. This
provision shall not limit each Purchaser's right to transfer the Securities
pursuant to the terms of this Agreement or to assign such Purchaser's rights
hereunder to any such transferee. In that regard, if Purchaser sells all or
part of its Common Shares to someone that acquires the shares subject to
restrictions on transferability (other than restrictions, if any,
arising out of the transferee's status as an affiliate of the
Company), Purchaser shall be permitted to assign its rights hereunder, in
whole or in part, to such transferee.
8.8 Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
8.9 Survival. The representations and warranties of the Company and
the agreements and covenants shall survive the closing hereunder
notwithstanding any due diligence investigation conducted by or on behalf of
Purchaser. The Company agrees to indemnify and hold harmless each Purchaser
and each of each Purchaser's officers, directors, employees, partners, agents
and affiliates for loss or damage arising as a result of or related to any
breach or alleged breach by the Company of any of its representations or
covenants set forth herein, including advancement of expenses as they are
incurred. The representations and warranties of the Purchaser shall survive
the Closing hereunder and each Purchaser shall indemnify and hold harmless
the Company and each of its officers, directors, employees, partners, agents
and affiliates for any loss or damage arising as a result of the breach of
such Purchaser's representations and warranties.
8.10 Public Filings: Publicity. As soon as practicable following
Closing, the Company shall issue a press release with respect to the
transactions contemplated hereby. The Company and each Purchaser shall have
the right to approve before issuance any press releases, SEC or NASDAQ (or
other exchange) filings, or any other public statements with respect to the
transactions contemplated hereby (which approval shall not be unreasonably
withheld or delayed); provided, however, that the Company shall be entitled,
without the prior approval of any Purchaser, to make any press release or
SEC, NASDAQ, NASD or exchange filings with respect to such transactions as is
required by applicable law and regulations (although the Company shall make
all reasonable efforts to consult with each Purchaser in connection with any
such press release prior to its release and shall provide each Purchaser with
a copy thereof).
8.11 Further Assurances. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
8.12 Remedies. No provision of this Agreement providing for any remedy
to a Purchaser shall limit any remedy which would otherwise be available to
such Purchaser at law or in equity. Nothing in this Agreement shall limit any
rights a Purchaser may have with any applicable federal or state securities
laws with respect to the investment contemplated hereby. The Company
acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to a Purchaser. Accordingly, the Company acknowledges that
the remedy at law for a material breach of its obligations under this
Agreement will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Agreement, that a
Purchaser shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach and requiring immediate compliance,
without the necessity of showing economic loss and without any bond or other
security being required.
8.13 Final Agreement. This Agreement, when executed by the parties
hereto, shall constitute the final agreement between the parties and upon
such execution the Purchaser and the Company accept the terms hereof and have
no cause of action against each other for prior negotiations preceding the
execution of this Agreement.
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
PURCHASER:
________________________________
By:_____________________________
Name:
Title:
Aggregate Number Of Common Shares: __________
Date: ____________, 1997
COMPANY:
MIRAVANT MEDICAL TECHNOLOGIES:
By:_______________________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
Date: ____________, 1997
Exhibit A
To
Securities Purchase Agreement
STOCK PURCHASE WARRANT
Exhibit B
To
Securities Purchase Agreement
REGISTRATION RIGHTS AGREEMENT
Exhibit C
To
Securities Purchase Agreement
LOCK-UP AGREEMENT
Exhibit D
To
Securities Purchase Agreement
