Exhibit 10.1
CONTRACT MODIFICATION AND
TERMINATION AGREEMENT
This CONTRACT MODIFICATION AND TERMINATION AGREEMENT (the "Agreement") is
made and entered into as of the 5th day of March, 2002 by and between PHARMACIA
AB, a Swedish corporation ("Pharmacia AB"), PHARMACIA & UPJOHN COMPANY, a
Delaware corporation ("P&U Co."), PHARMACIA & UPJOHN, INC., a Delaware
corporation ("P&U Inc."), PHARMACIA Italia, S.p.A., an Italian corporation
("Pharmacia S.p.A." and together with Pharmacia AB, P&U Co. and P&U Inc., the
"Pharmacia Entities") and MIRAVANT MEDICAL TECHNOLOGIES, a Delaware corporation.
("Miravant").
W I T N E S S E T H :
WHEREAS: The parties have entered into (i) the Manufacturing Facility Asset
Purchase Agreement, dated as of May 24, 2001 (the "Asset Purchase Agreement"),
between P&U Co. and Miravant, (ii) the Amended and Restated Credit Agreement,
dated as of May 24, 2001 (as amended, modified or supplemented from time to
time, the "Credit Agreement"), between Miravant and Pharmacia AB , (iii) the
Site Access License Agreement, dated as of May 31, 2001 (the "Site Access
License Agreement"), between Miravant and P&U Co., (iv) the Sublease Assignment
Agreement, dated as of May 24, 2001 (the "Sublease Assignment"), between
Miravant and P&U Co., (v) the Amended and Restated Ophthalmology Development and
License Agreement, dated as of February 18, 1999 (the "Ophthalmology License
Agreement"), between Pharmacia AB and Miravant, (vi) the Ophthalmology Side
Letter, dated as of May 24, 2000, between Pharmacia AB and Miravant (the
"Ophthalmology Side Letter"), (vii) the IRIDEX Side Letter, dated May 31, 2000,
between P&U Co. and Miravant (the "IRIDEX Side Letter"), (viii) the SnET2 Device
Supply Agreement for Ophthalmology, dated December 20, 1996, between Miravant
and Pharmacia AB, and the SnET2 Device Supply Agreement, dated July 1, 1995
between Miravant and Pharmacia S.p.A. (collectively, as amended, modified or
supplemented from time to time, the "Device Supply Agreements"), (ix) the
Restated and Amended Development and License Agreement, dated June 8, 1998,
between Pharmacia S.p.A. and Miravant (the "Oncology License Agreement"), (x)
the Product Supply Agreement, dated July 1, 1995, between Pharmacia S.p.A. and
Miravant (the "Product Supply Agreement"), (xi) the Cardiovascular SnET2 Right
of First Negotiation Side Letter, dated January 15, 1999, between Pharmacia AB
and Miravant, (the "Cardiovascular Side Letter") and (xii) the Equity Investment
Agreement, dated January 15, 1999, between P&U Inc., Pharmacia S.p.A. and
Miravant (collectively, the "Prior Agreements");
WHEREAS: The parties wish to modify the Credit Agreement to, inter alia,
reduce the indebtedness owed by Miravant to Pharmacia AB from approximately
$27,000,000 through the date hereof to a principal balance of $10,000,000 which
shall remain payable, with interest, to Pharmacia AB as provided herein; and
-11-
WHEREAS: The parties wish to terminate those portions of the remaining
Prior Agreements identified below upon the terms and conditions set forth
herein.
NOW THEREFORE, the parties agree as follows:
1. Terms used but not defined herein shall have the meaning ascribed to such
terms in the Credit Agreement, the Asset Purchase Agreement, the Sublease
Assignment or the Ophthalmology License Agreement, as the case may be.
2. The consummation of the transactions contemplated by this Agreement shall
occur on the first Business Day following the date on which Miravant shall
have delivered to Pharmacia Corporation ("Pharmacia") or its counsel, in
The City of New York, the following documents (such Business Day, the
"Effective Date"):
(a) A promissory note in the form set forth in Exhibit A (the "First
Replacement Note") and a promissory note in the form set forth in
Exhibit B (the "Second Replacement Note" and, collectively with the
First Replacement Note, the "Replacement Notes"), each dated as of the
Effective Date and duly executed on behalf of Miravant.
(b) The opinion of Xxxxxxxx Xxxxxx Xxxxxxx and Xxxxxxx LLP in the form set
forth in Exhibit C, dated as of the Effective Date.
(c) Proper documentation providing Pharmacia AB with a valid and
continuing security interest in and to the entirety of all of
Miravant's assets pursuant to that certain Security Agreement, dated
as of February 18, 1999, between Miravant and Pharmacia AB (the
"Security Agreement").
3. With effect as of and following the Effective Date, the Credit Agreement is
hereby amended as follows:
(a) Sections 2.01, 2.02, 2.03(b) and 2.03(c), the second sentence in
Section 2.04 (including the proviso therein), Sections 3.01(b) and
4.02, Section 5.01(h)(ii), Article VI and Sections 7.01(a)(viii),
7.02(d), 7.02(f), 7.02(h), 7.02(l), 7.02(p), 7.03 and 8.01(l) of the
Credit Agreement are deleted in their entirety and all references to
such Sections are hereby deleted.
(b) The definition of Note is amended to mean either of the Replacement
Notes. The definition of Loans is amended to mean the indebtedness
represented by the Replacement Notes. All references to Pre-Event and
Post-Event Loans are hereby deleted. The definition of Maturity Date
is amended to mean, with respect to any Replacement Note or Loan, the
maturity date specified in such Replacement Note or the Replacement
Note applicable to such Loan, as the case may be.
(c) Section 7.02(c) is amended and restated in its entirety as follows:
"Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, or permit any of its Subsidiaries to do so,
unless all such Indebtedness is, pursuant to contractual subordination
provisions reasonably acceptable to Lender, subordinated to the
obligations of the Borrower."
(d) Section 7.02(n) and 7.02(o) are amended and restated in their entirety
as follows:
"Until satisfaction in full of all the obligations of
the Borrower under the Credit Documents, the Borrower will not make any
Asset Disposition or sell or offer to sell any securities, or permit
any of its Subsidiaries to make any Asset Disposition or sell or offer
or sell any securities unless:
(i)(A) In the case of an Asset Disposition, the
Borrower (or such Subsidiary, as the case may be) receives
consideration at the time of such disposition at least equal to the
fair market value of the shares or assets disposed of (which may be as
determined in good faith by the Board of Directors and evidenced by a
resolution adopted thereby) and the consideration for such disposition
consists of cash or readily marketable cash equivalents or the
assumption of Indebtedness of the Borrower or other obligations
relating to such assets and release from all liability on the
Indebtedness or other obligations assumed; or
(B) In the case of a sale or an offer to sell any securities, the
consideration for such disposition consists of cash; and
(ii) The cumulative amounts of all Net
Available Asset Disposition Proceeds and Net Available Securities
Offering Proceeds received in one or more dispositions (including from
the sale of any marketable cash equivalents received therein)
(collectively, the "Disposition Proceeds") are applied by the Borrower
(or such Subsidiary, as the case may be), within two Business Days of
the receipt thereof, to prepayment of the Replacement Notes in
accordance with their terms as set forth below.
Aggregate Disposition Proceeds Percentage
$0 - $6,999,999 0%
Up to $8,000,000 in excess of $7,000,000 33.33%
Up to $10,000,000 in excess of $15,000,000 50%
Amounts in excess of $25,000,000 100%
In the event Disposition Proceeds are paid to Lender prior to the
maturity date of the First Replacement Note, the amount due under the
First Replacement Note will be reduced by the amount of the Disposition
Proceeds paid by Borrower to Lender. In the event Disposition Proceeds
are paid to Lender after the maturity date of the First Replacement
Note but prior to the maturity date of the Second Replacement Note, the
amount due under the Second Replacement Note will be reduced by the
amount of the Disposition Proceeds paid by Borrower to Lender."
(e) Section 9.07 is amended to include the following:
"(c) If Borrower intends to enter into a transaction,
take any action or suffer to exist any circumstance that would
cause Borrower to contravene one or more covenants set forth
in this Agreement, Borrower must, in accordance with this
Section 9.07 and prior to entering into such transaction,
taking such action or suffering to exist such circumstance,
provide Lender with written notice thereof, setting forth with
reasonable specificity the details thereof, including, but not
limited to, all relevant terms and conditions thereof. Lender
shall have seven Business Days following receipt of such
notice to either consent to or disallow such transaction. Such
notice shall be addressed to:
Pharmacia Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxx Xxxxx
And
Pharmacia Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx xxx Xxxxx
And
Pharmacia Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxx"
4. With effect as of and following the Effective Date, those certain
promissory notes dated June 9, 1999 and July 6, 1999 heretofore delivered
by Miravant to Subsidiaries of Pharmacia are amended and restated in their
entirety as set forth in the First Replacement Note and those certain
promissory notes dated October 4, 1999, December 13, 1999, January 4, 2000,
April 4, 2000, May 23, 2000, July 5, 2000, October 2, 2000, January 2,
2001, April 4, 2001, July 3, 2001, October 3, 2001 and January 4, 2002
heretofore delivered by Miravant to Subsidiaries of Pharmacia are amended
and restated in their entirety as set forth in the Second Replacement Note.
Promptly following the Effective Date, P&U Inc. shall cause its Affiliates
or Subsidiaries to deliver to Miravant the original promissory notes issued
prior to the date hereof, which shall bear an appropriate legend to the
effect that such notes have been cancelled in connection with the foregoing
amendment and restatement.
5. With effect as of and following the Effective Date:
(a) P&U Co. hereby sells, conveys, transfers, assigns and delivers to
Miravant, and Miravant hereby accepts such sale, conveyance, transfer,
assignment and delivery of, all of its right title and interest in and
to the Purchased Assets (as defined in the Asset Purchase Agreement)
and Pharmacia AB hereby sells, conveys, transfers, assigns and
delivers to Miravant, and Miravant hereby accepts such sale,
conveyance, transfer, assignment and delivery of, all Light Devices,
clinical SnET2 in finished dose form ("SnET2 FDF") and SnET2 active
pharmaceutical ingredient ("API") owned by Pharmacia AB or its
Affiliates. Promptly following the Effective Date, P&U Co. shall
immediately deliver the Purchased Assets in its possession and
Pharmacia AB shall deliver the Light Devices, SnET2 FDF and API in its
possession to Miravant; provided, however, that P&U Co., Pharmacia AB
or any entity involved in the manufacture of SnET2 FDF or the conduct
of the clinical trials may retain any samples required for compliance
with any law, statute, rule, guidelines, regulation or order of any
Governmental Authority. Ownership in, and (subject to notification to
the Food and Drug Administration via amendment of the IND) all right,
title and interest to, the IND and any related documents, including,
without limitation, all (i) data and documentation associated with the
Phase II Ophthalmology Clinical Trials and the Phase III Clinical
Trials for Age-Related Macular Degeneration (collectively, the
"Clinical Trials") conducted under the IND, (ii) SnET2 preclinical
reports and data, (iii) NDA drafts, including the CMC Section, and
(iv) associated filings, submissions and correspondence, whether held
by Pharmacia AB, or its Affiliates, or by Inveresk LLC (formerly
ClinTrials Research, Inc.), are hereby transferred from Pharmacia AB
to Miravant. P&U Inc. agrees and shall cause each of its Affiliates to
agree to complete all the IND-transfer activities listed in Exhibit D
hereto as promptly as practicable and at its own expense.
Notwithstanding any of the foregoing, nothing in this Agreement
requires Pharmacia or any of its Affiliates to disclose or convey any
proprietary or confidential information owned by any other entity
included in any data, reports, documentation, filings, submissions,
correspondence or drafts. Pharmacia AB and P&U Co. will, however, take
such actions as are reasonably necessary to assist Miravant in
obtaining access to such proprietary or confidential information. All
costs associated with the conduct of the Clinical Trials, including
Miravant's out-of-pocket costs associated with the Clinical Trials and
API manufacturing costs through January 23, 2002, and the closing out
of all principal investigator sites, shall remain the sole
responsibility of Pharmacia AB. Ownership in, and all title, right or
interest of Pharmacia AB in SnET2 FDF held by Fresenius Kabi Nutrition
AB for Pharmacia AB at its facility in Clayton, North Carolina are
hereby transferred from Pharmacia AB to Miravant. MIRAVANT
ACKNOWLEDGES AND AGREES THAT THE FOREGOING ASSIGNMENTS ARE MADE ON AN
"AS-IS, WHERE-IS" QUITCLAIM BASIS AND THAT NEITHER PHARMACIA NOR ANY
SUBSIDIARY OR AFFILIATE HAS MADE OR WILL MAKE ANY WARRANTY WHATSOEVER,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR TITLE. The Pharmacia Entities and their respective officers
and agents, for themselves and their respective successors and
assigns, covenant that it will from time to time after the date hereof
and without further consideration, upon the reasonable request of
Miravant, make, execute and deliver without further compensation any
and all instruments in writing, further applications, papers,
affidavits, powers of attorney, assignments and other documents which
may be reasonably required to more effectively secure to and vest in
Miravant, its successors and assigns, the entire right, title and
interest in and to the Purchased Assets, the Light Devices, the SnET2
FDF, API and the IND and all related documents transferred to
Miravant.
(b) Miravant assumes from P&U Co., and agrees to pay, discharge and
perform or satisfy when due, and to indemnify and hold harmless P&U
Co. and its Subsidiaries and Affiliates against, the Assumed
Liabilities (as defined in the Asset Purchase Agreement). Miravant,
its officers and agents, for themselves and their successors and
assigns, covenants that it and they will from time to time after the
date hereof and without further consideration, upon the reasonable
request of P&U Co., make, execute and deliver without further
compensation any and all instruments in writing, further applications,
papers, affidavits, powers of attorney, assignments and other
documents which may be reasonably required to more effectively secure
to and vest in Miravant, its successors and assigns, the entire right,
title and interest in and to the Assumed Liabilities.
(c) The (i) IRIDEX Side Letter, (ii) Ophthalmology Side Letter and (iii)
except for Article 10 thereof, which shall survive for the period
contemplated therein, the Ophthalmology License Agreement are each
hereby terminated in their entirety.
(d) The Site Access License Agreement and the Sublease Assignment are
hereby terminated, and P&U Co. hereby assigns, transfers and conveys
to Miravant all of its right, title and interest in and to the
Sublease and Miravant hereby accepts the foregoing assignment,
transfer and conveyance of the Sublease. Miravant hereby assumes, and
agrees to pay, perform, and discharge when due, and indemnify and hold
harmless Pharmacia and its Affiliates against, all of the obligations
and liabilities of P&U Co. arising under or in connection with the
Sublease and the Consent to Temporary Assignment, dated as of May 24,
2001 (the "Consent to Temporary Assignment"), by and between Raytheon
Corporation, Miravant and P&U Co. from and after the Effective Date.
The parties hereto agree to take such actions as are reasonably
required to terminate the Consent to Temporary Assignment as promptly
as practicable.
(e) The Cardiovascular Side Letter is hereby terminated.
(f) P&U Inc. and its Affiliates shall have no obligation to purchase any
SnET2 manufactured by Miravant after January 23, 2002 and any
outstanding contracts or purchase orders for SnET2 are hereby
terminated as of January 23, 2002 without penalty.
(g) P&U Co. hereby consents to the immediate release of all assets
currently held by Sanwa Bank California (the "Escrow Agent") pursuant
to the APA Escrow Agreement, dated as of May 31, 2001, among P&U Co.,
Miravant and the Escrow Agent.
(h) (i) The Credit Agreement, as amended hereby, (ii) the Replacement
Notes, (iii) that certain Warrant Agreement, dated as of February 18,
1999, between Miravant and Pharmacia AB, as amended, modified or
supplemented from time to time (the "Warrant Agreement"), (iv) those
certain warrants (the "Warrants") issued by Miravant to Pharmacia AB
on June 9, 1999, December 13, 1999 and May 23, 2000 for the purchase
of 120,000 shares of Common Stock, par value $0.01 per share (the
"Shares"), expiring on June 9, 2004, December 13, 2004 and May 23,
2005, respectively, and issued at exercise prices of $11.87, $14.8313
and $20.615 per Share, respectively, and (v) the Security Agreement,
(vi) that certain Registration Rights Agreement, dated as of February
18, 1999, between Miravant and Pharmacia & Upjohn, Inc., a Delaware
corporation, as amended, modified or supplemented from time to time
(the "Registration Rights Agreement"), and (vii) any claims actionable
under any indemnification provision of a Prior Agreement shall survive
this Agreement in full force and effect.
(i) The parties agree that, until Miravant has fulfilled all its
obligations pursuant to the Replacement Notes, the assets of Miravant
and its Subsidiaries will remain secured pursuant to the terms and
conditions of the Security Agreement, and the Security Agreement will
be deemed amended however necessary to secure such assets.
(j) Except as otherwise set forth herein, all other Prior Agreements not
otherwise modified or terminated above are hereby terminated, except
for any indemnification provisions set forth in such Prior Agreements,
which shall survive for the periods specified therein.
(k) The parties hereto agree to take such actions as are reasonably
required to terminate the SnET2 Development Activities Transfer Letter
Agreement, dated May 1, 2000, between Pharmacia AB, Miravant and
Fresenius Kabi AG as promptly as practicable.
6. With effect as of and following the Effective Date, Miravant, for itself
and its stockholders, officers, directors, employees, agents, assigns,
successors, representatives, direct and indirect parent companies, direct
and indirect Subsidiaries and other Affiliates (collectively, the
"Releasing Miravant Entities") hereby releases, discharges, and covenants
not to xxx or bring or maintain any suit, claim, action or bring any
proceeding against Pharmacia, any of its stockholders, officers, directors,
employees, agents, assigns, successors, representatives (including, without
limitation, financial advisors and counsel), direct or indirect parent
companies, direct or indirect Subsidiaries or other Affiliates from,
against or regarding any and all claims, demands, awards, damages, suits,
causes of action, losses, liabilities or expenses of any kind or character,
whether known or unknown (collectively "Claims") which the Releasing
Miravant Entities now have, may have or ever had, which arise out of or in
connection with any transaction, circumstances, actions, failures to act or
other matters whatsoever existing on or at any time prior to the Effective
Date, other than Claims which arise out of or in connection with a breach
or alleged breach of (i) this Agreement, (ii) the Credit Agreement, as
amended hereby, (ii) the Replacement Notes, (iii) that certain Warrant
Agreement, dated as of February 18, 1999, between Miravant and Pharmacia
AB, as amended, modified or supplemented from time to time, (iv) those
certain warrants issued by Miravant to Pharmacia AB on June 9, 1999,
December 13, 1999 and May 23, 2000 for the purchase of 120,000 shares of
Common Stock, par value $0.01 per share (the "Shares"), expiring on June 9,
2004, December 13, 2004 and May 23, 2005, respectively, and issued at
exercise prices of $11.87, $14.8313 and $20.615 per Share, respectively,
(v) that certain Security Agreement, dated as of February 18, 1999, between
Miravant and Pharmacia AB, as amended, modified or supplemented from time
to time, (vi) that certain Registration Rights Agreement, dated as of
February 18, 1999, between Miravant and P&U Inc., as amended, modified or
supplemented from time to time, and (vii) claims actionable under any
indemnification provision of a Prior Agreement (collectively, the "Excluded
Claims").
7. With effect as of and following the Effective Date, each of the Pharmacia
Entities for itself and its stockholders, officers, directors, employees,
agents, assigns, successors, representatives, direct and indirect parent
companies, direct and indirect Subsidiaries and other Affiliates
(collectively, the "Releasing Pharmacia Entities") hereby releases,
discharges, and covenants not to xxx or bring or maintain any suit, claim,
action or bring any proceeding against Miravant, any of its stockholders,
officers, directors, employees, agents, assigns, successors,
representatives (including, without limitation, financial advisors and
counsel), direct or indirect parent companies, direct or indirect
Subsidiaries or other Affiliates from, against or regarding any and all
Claims which the Releasing Pharmacia Entities now have, may have or ever
had, which arise out of or in connection with any transaction,
circumstances, actions, failures to act or other matters whatsoever
existing on or at any time prior to the Effective Date, other than Claims
which arise out of or in connection with a breach or alleged breach of the
Excluded Claims.
8. Each of the parties acknowledges and agrees that if any fact regarding the
subject matter underlying this Agreement is found hereafter to be other
than, or different from, any fact now believed to be true, such party
expressly accepts and assumes the risk of such possible difference(s) in
fact and agrees that this Agreement shall be, and remain, effective,
notwithstanding such difference(s) in fact(s). Each of the parties
acknowledges that it is familiar with the provisions of Section 1542 of the
California Civil Code and expressly agrees that the waivers and releases
set forth above constitute a waiver and release of any rights or benefits
that may arise thereunder, to the full extent that such rights or benefits
may be waived. Section 1542 of the California Civil Code states as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
Each of the parties expressly acknowledges that the effect and import of this
provision has been fully explained by such party's own counsel and that this
Agreement is entered into knowingly and voluntarily, without duress or undue
influence, in consideration for the promises, obligations and rights set forth
herein.
9. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument.
10. Each and every right granted to the Pharmacia Entities and their
Subsidiaries and Affiliates hereunder or under any other document delivered
in connection herewith, or allowed to such parties by law or equity, shall
be cumulative and not exclusive and may be exercised from time to time. No
failure on the part of any such party to exercise, and no delay in
exercising, any right will operate as a waiver thereof, nor will any single
or partial exercise by any such party of any right preclude any other or
future exercise thereof or the exercise of any other right.
11. In case any one or more of the provisions contained in this Agreement or
any Replacement Note shall be invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions contained herein or in any other Replacement Note
shall not in any way be affected or impaired thereby.
12. Each party acknowledges that one party will have no adequate remedy at law
if the other party fails to perform any of its obligations under this
Agreement. In such event, each party agrees that the other party shall have
the right, in addition to any other rights it may have, to specific
performance of this Agreement and agrees to take no action to prevent the
other party's seeking such specific performance as a remedy.
13. The parties hereto waive compliance with the requirements of the bulk sales
law of any jurisdiction in connection with the sale of the Purchased Assets
to Miravant.
14. The parties hereto agree that they will advise and confer with each other
prior to the public issuance of any reports, statements or releases
pertaining to this Agreement, the transactions contemplated hereby, or the
implementation hereof, and obtain the written consent of the other party
hereto for all such publicly disseminated information issued by such party
prior to the close of the transactions contemplated in this Agreement.
Notwithstanding any provision of this Agreement to the contrary, no party
hereto will disseminate publicly nor deliver to any third party any press
release or other significant written statement that references the name of
any other party hereto or any of its Affiliates or that could reflect
negatively on any other party hereto without the specific, written consent
of such other party, except as required by law (as advised in writing by
counsel).
15. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be
performed entirely within such State.
IN WITNESS WHEREOF, the parties have caused this Agreement to be fully
executed as of the date first above written.
PHARMACIA AB
By: /s/ Xxxxxxxxx xxx Xxxxx
---------------------------
Name: Xxxxxxxxx xxx Xxxxx
Title: Attorney-in-Fact
By:/s/ Xxxxxxx Xxxx
-------------------
Name: Xxxxxxx Xxxx
Title: Attorney-in-Fact
PHARMACIA & UPJOHN COMPANY
By:/s/ Xxx X. Xxxxxxx
---------------------
Name: Xxx X. Xxxxxxx
Title: Vice President, Associate General Counsel
and Corporate Secretary
PHARMACIA & UPJOHN, INC.
By:/s/ Xxx X. Xxxxxxx
---------------------
Name: Xxx X. Xxxxxxx
Title: Vice President, Associate General Counsel
and Corporate Secretary
PHARMACIA ITALIA, S.P.A.
By:/s/ Xxx X. Xxxxxxx
---------------------
Name: Xxx X. Xxxxxxx
Title: Vice President, Associate General Counsel
and Corporate Secretary
MIRAVANT MEDICAL TECHNOLOGIES
By:/s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
A-3
EXHIBIT A
Form of Note
PROMISSORY NOTE
$5,000,000 March 5, 2002
MIRAVANT MEDICAL TECHNOLOGIES, a Delaware corporation (the "Borrower"), for
value received, promises to pay to the order of Pharmacia AB (the "Lender"), on
March 5, 2003, the principal sum of $5,000,000 pursuant to and in the manner
contemplated by that certain Amended and Restated Credit Agreement, dated as of
May 24, 2001 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), between the Borrower and the Lender. In accordance with the
terms of the Contract Modification and Termination Agreement, of even date
herewith, by and between Lender, Pharmacia & Upjohn Company, a Delaware
corporation, Pharmacia & Upjohn, Inc., a Delaware corporation, Pharmacia Italia,
S.p.A., an Italian corporation and Borrower, this Note amends and restates those
certain promissory notes dated June 9, 1999 and July 6, 1999 heretofore
delivered by Borrower to a subsidiary of Pharmacia & Upjohn, Inc. pursuant to
the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding, from the date hereof until the date of
repayment, at the rate or rates per annum and on the date or dates determined
pursuant to Section 3.01(a) of the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in funds immediately available to the Lender at its
office or offices designated in accordance with the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive diligence, presentment, demand, protest and notice of any kind whatsoever.
The failure or forbearance by the holder to exercise any of its rights hereunder
in any particular instance shall in no event constitute a waiver thereof.
The Credit Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events and for
the amendment or waiver of certain provisions of the Credit Agreement and/or
this Note, all upon the terms and conditions therein specified. Capitalized
terms used and not otherwise defined herein have the meanings ascribed thereto
in the Credit Agreement.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
This Note is not negotiable and may be assigned only upon the terms and
conditions specified in the Credit Agreement.
MIRAVANT MEDICAL TECHNOLOGIES
By:/s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
B-3
EXHIBIT B
Form of Note
PROMISSORY NOTE
$5,000,000 March 5, 2002
MIRAVANT MEDICAL TECHNOLOGIES, a Delaware corporation (the "Borrower"), for
value received, promises to pay to the order of Pharmacia AB (the "Lender"), on
June 9, 2004, the principal sum of $5,000,000 pursuant to and in the manner
contemplated by that certain Amended and Restated Credit Agreement, dated as of
May 24, 2001 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), between the Borrower and the Lender. In accordance with the
terms of the Contract Modification and Termination Agreement, of even date
herewith, by and between Lender, Pharmacia & Upjohn Company, a Delaware
corporation, Pharmacia & Upjohn, Inc., a Delaware corporation, Pharmacia Italia,
S.p.A., an Italian corporation and Borrower, this Note amends and restates those
certain promissory notes dated October 4, 1999, December 13, 1999, January 4,
2000, April 4, 2000, May 23, 2000, July 5, 2000, October 2, 2000, January 2,
2001, April 4, 2001, July 3, 2001, October 3, 2001 and January 4, 2002
heretofore delivered by Borrower to a subsidiary of Pharmacia & Upjohn, Inc.
pursuant to the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding, from the date hereof until the date of
repayment, at the rate or rates per annum and on the date or dates determined
pursuant to Section 3.01(a) of the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in funds immediately available to the Lender at its
office or offices designated in accordance with the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive diligence, presentment, demand, protest and notice of any kind whatsoever.
The failure or forbearance by the holder to exercise any of its rights hereunder
in any particular instance shall in no event constitute a waiver thereof.
The Credit Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events and for
the amendment or waiver of certain provisions of the Credit Agreement and/or
this Note, all upon the terms and conditions therein specified. Capitalized
terms used and not otherwise defined herein have the meanings ascribed thereto
in the Credit Agreement.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
This Note is not negotiable and may be assigned only upon the terms and
conditions specified in the Credit Agreement.
MIRAVANT MEDICAL TECHNOLOGIES
By:/s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
C-2
EXHIBIT C
Form of Opinion of Counsel for the
Borrower to be Delivered at the Effective Time
[Effective Date]
Pharmacia Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
In connection with the execution and delivery of the Contract Modification
and Termination Agreement, dated as of March 5, 2002 (the "Agreement"), by and
between Pharmacia AB, a Swedish corporation ("Pharmacia AB"), Pharmacia & Upjohn
Company, a Delaware corporation ("P&U Co."), Pharmacia & Upjohn, Inc., a
Delaware corporation ("P&U Inc."), Pharmacia Italia, S.p.A. an Italian
corporation ("P&U S.p.A.") and Miravant Medical Technologies, a Delaware
corporation. ("Miravant"), and the execution and delivery today of the
promissory notes contemplated by the Agreement (the "Replacement Notes" and,
collectively with the Agreement, the "Replacement Documents"), we, as counsel
for Miravant, have examined such corporate records, certificates and other
documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion. Upon the basis of such
examination, it is our opinion that:
(1) Miravant has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware.
(2) Each of the Replacement Documents has been duly authorized, executed and
delivered, and each of the Replacement Documents constitutes the valid and
legally binding obligation of Miravant enforceable in accordance with its
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
The foregoing opinion is limited to the Federal laws of the United States
and the laws of the State of New York, and we are expressing no opinion as to
the effect of the laws of any other jurisdiction.
With your approval, we have relied as to certain matters on information
obtained from public officials, officers of Miravant and other sources believed
by us to be responsible, and we have assumed that each of the Replacement
Documents has been duly authorized, executed and delivered by the parties
thereto other than Miravant and its affiliates, and that the signatures on all
documents examined by us are genuine, assumptions which we have not
independently verified.
This letter is delivered by us as counsel for Miravant to you, and is
solely for your benefit.
Very truly yours,
/s/ Xxxxxxxx Xxxxxx Xxxxxxx & Hampton LLP
D-1
EXHIBIT D
Transfer of IND 49,648 from Pharmacia to Miravant
Pharmacia AB and P&U Co. Responsibilities:
1. Notify FDA via IND amendment that all rights to the IND have been assigned
or transferred to Miravant with a specified effective date.
2. Provide Miravant with a copy of all IND amendments and correspondence
pertaining to it.
3. Terminate clinical studies 001 and 004 (Phase 3), 002 (Open label) and 006
(Photosensitivity).
4. Notify Fresenius Kabi Nutrition AB ("Fresenius") and Inveresk that all
rights to the IND have been assigned and transferred to Miravant.
5. Pharmacia will take such actions as are reasonably necessary to assist
Miravant in obtaining a new letter from Fresenius permitting Miravant to
reference the Fresenius Drug Master File in support of IND 49,648.
6. Retrieve all unused investigational drug supplies and lasers.
7. Provide Med Alert bracelet follow-up for all four studies for eight months
after last drug treatment.
8. Until the IND has been transferred to Miravant, submit IND safety reports
as required, after which time Miravant shall be responsible for submitting
such IND safety reports.
9. Provide final copies (hard and soft) of CMC latest drafts including
impurity analysis for establishing specifications, provided, however, that
none of the Pharmacia Entities nor any of their respective Subsidiaries or
Affiliates shall be required to disclose or convey any proprietary or
confidential information owned by any other entity included in any data,
reports, documentation, filings, submissions, correspondence or drafts.
Pharmacia AB and P&U Co. will, however, take such actions as are reasonably
necessary to assist Miravant in obtaining access to such proprietary or
confidential information.
10. All final reports and/or access to source documents for all pre-clinical
studies performed by Pharmacia related to SnET2 will be made available to
Miravant.
