REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of __________, 1997 (the
"Agreement"), is made by and between MIRAVANT MEDICAL TECHNOLOGIES, a
Delaware corporation, 0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX 00000 (the
"Company"), and the undersigned investor (the "Initial Investor").
W I T N E S S E T H :
WHEREAS, in connection with the Securities Purchase Agreement dated
__________, 1997 among the Initial Investor and the Company (the "Purchase
Agreement"), the Company has agreed, upon the terms and subject to the
conditions of said Purchase Agreement, to issue and sell to the Initial
Investor ______________________________ (_______) shares of common stock of
the Company par value $.001 per share (the "Common Stock"), together with
Warrants to purchase additional shares of common stock. The shares of Common
Stock and the shares of Common Stock into which the Warrants are exercisable
are collectively referred to herein as the "Registrable Shares." In
connection with the sale of the Registrable Shares to the Initial Investor
(the "Offering"), the Initial Investor will be entitled to registration
rights as set forth in this Agreement.
WHEREAS, to induce the Initial Investor to execute and deliver the
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"Securities Act"), and applicable state securities laws with respect to the
Registrable Shares;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Initial Investor hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
(a) "Holders" are stockholders of the Company who, by virtue of
agreements with the Company, are entitled to include their securities in
certain Registration Statements filed by the Company.
(b) "Investor" means the Initial Investor and any transferee or
assignee of the Initial Investor who agree to become bound by the provisions
of this Agreement in accordance with Section 9 hereof.
(c) "Registrable Securities" means the Registrable Shares,
together with any shares of Common Stock or other securities which may be
issued as a dividend or other distribution or in exchange for Registrable
Shares and any additional shares of Common Stock or other securities which
may be issued due to anti-dilution adjustments with respect to the
Registrable Shares or pursuant to Section 5.3 of the Purchase Agreement,
which are required to be included in a Registration Statement pursuant to
Section 2(a) below.
(d) "Registration Period" means the period between the date of
this Agreement and the earlier of (i) the date on which all of the
Registrable Securities (including all shares of Common Stock into which the
Warrants are exercisable) have been sold in transactions where the transferee
is not subject to securities law resale restrictions (or is subject to
securities law resale restrictions solely because it is an "affiliate" of the
Company under the Securities Act and the Rules promulgated thereunder), or
(ii) the date
on which the Registrable Securities (in the opinion of Investor's counsel)
may be immediately sold without registration and free of restrictions on
transfer.
(e) "Registration Statement" means a registration statement of the
Company filed with the Securities and Exchange Commission (the "SEC") under
the Securities Act.
(f) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a Registration Statement
in compliance with the Securities Act and applicable rules and regulations
thereunder and pursuant to Rule 415 under the Securities Act, and the
declaration or ordering of effectiveness of such Registration Statement by
the SEC.
2. Registration.
(a) Mandatory Registration. The Company will prepare and file a
Registration Statement with the SEC, registering all of the Registrable
Securities for resale promptly following the closing of the purchase of the
Common Stock (the "Closing Date"). To the extent allowable under the
Securities Act and the Rules promulgated thereunder, the Registration
Statement shall include the Registrable Securities and such indeterminate
number of additional shares of Common Stock as may become issuable pursuant
to Section 5.3 of the Purchase Agreement and/or upon exercise of the Warrants
(i) to prevent dilution resulting from stock splits, stock dividends or
similar transactions, or (ii) by reason of changes in the exercise price of
the Warrants in accordance with the terms thereof. The number of shares of
Common Stock initially included in such Registration Statement shall include
no less than 125% of the number of Registrable Securities that are issued on
the Closing Date and issuable upon exercise of the Warrants as of the Closing
Date. The Registration Statement (and each amendment or supplement thereto)
shall be provided to, and subject to the reasonable approval of, the Initial
Investor and its counsel. The Company shall use its best efforts to cause
such Registration Statement to be declared effective by the SEC as soon as
practicable after filing and in any event no later than ninety (90) days
after the Closing Date (the "Required Effective Date"). Such best efforts
shall include, but not be limited to, promptly responding to all comments
received from the staff of the SEC. Should the Company receive notification
from the SEC that the Registration Statement will receive no action or no
review from the SEC, the Company shall cause such Registration Statement to
become effective within five (5) business days of such SEC notification.
Once declared effective by the SEC, the Company shall cause such Registration
Statement to remain effective throughout the Registration Period.
(b) Late Registration Payments. If the Registration Statement
required pursuant to Section 2(a) above has not been declared effective by
the Required Effective Date, the Company will make cash payments to the
Investor as partial compensation for such delay (the "Late Registration
Payments"). The Late Registration Payments will be equal to one percent (1%)
of the purchase price paid for the Common Shares for the first month
following the Required Effective Date, two (2%) of the purchase price paid
for the Common Shares for the second month or thirty (30) days thereafter,
and three percent (3%) of said purchase price for each month thereafter,
continuing through the date the Registration Statement is declared effective
by the SEC. The Late Registration Payments will be prorated on a daily basis
for partial months and will be paid to the Initial Investor in cash within
five (5) business days following the earlier of: (i) the end of each month
following the Required Effective Date, or (ii) the effective date of the
Registration Statement. Nothing herein shall limit the Investor's right to
pursue actual damages for the Company's failure to file a Registration
Statement or to have it declared effective by the SEC on or prior to the
Required Effective Date in accordance with the terms of this Agreement.
(c) Eligibility for Form S-3. The Company represents and warrants
that it meets the requirements for the use of Form S-3 for registration of
the sale by the Initial Investor of the Registrable Securities, and the
Company shall file all reports required to be filed by the Company with the
SEC in a timely manner so as to maintain such eligibility for the use of Form
S-3.
3. Additional Obligations of the Company. In connection with the
registration of the Registrable Securities, the Company shall have the
following additional obligations:
(a) The Company shall keep the Registration Statement required by
Section 2(a) hereof effective pursuant to Rule 415 under the Securities Act
at all times during the Registration Period as defined in Section 1(d) above.
(b) The Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) filed by the Company
shall not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading. The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to keep the Registration Statement
effective at all times during the Registration Period, and, during such
period, shall comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities of the Company covered by
the Registration Statement until such time as all of such Registrable
Securities have been disposed of in accordance with the intended methods of
disposition by the sellers thereof as set forth in the Registration
Statement. In the event the number of shares of Common Stock included in a
Registration Statement filed pursuant to this Agreement is insufficient to
cover all of the Registrable Securities, the Company shall amend, if
permissible, the Registration Statement and/or file a new Registration
Statement so as to cover all of the Registrable Securities as soon as
practicable, but in no event more than twenty (20) business days after the
Company first determines (or reasonably should have determined) the need
therefor. The Company shall use its best efforts to cause such amendment
and/or new Registration Statement to become effective as soon as practicable
following the filing thereof. The Late Registration Payment provisions of
Section 2(b) above shall become applicable with respect to the effectiveness
of such amendment and/or new Registration Statement on the thirtieth (30th)
day following the date the Company first determines (or reasonably should
have determined) the need for the amendment and/or new Registration Statement.
(c) The Company shall furnish to the Investor whose Registrable
Securities are included in the Registration Statement (i) promptly after the
same is prepared and publicly distributed, filed with the SEC or received by
the Company, one copy of the Registration Statement and any amendment
thereto; each preliminary prospectus and final prospectus and each amendment
or supplement thereto; and, in the case of the Registration Statement
required under Section 2(a) above, each letter written by or on behalf of the
Company to the SEC and each item of correspondence from the SEC, in each case
relating to such Registration Statement (other than any portion of any item
thereof which contains information for which the Company has sought
confidential treatment); and (ii) such number of copies of a prospectus,
including a preliminary prospectus, and all amendments and supplements
thereto, and such other documents as the Investor may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by
the Investor.
(d) The Company shall use its best efforts to (i) register and
qualify the Registrable Securities covered by the Registration Statement
under such other securities or blue sky laws of such jurisdictions as the
Investor reasonably requests, (ii) prepare and file in those jurisdictions
such amendments (including post-effective amendments) and supplements to such
registrations as may be necessary to maintain the effectiveness thereof
during the Registration Period, (iii) take such other actions as may be
necessary to maintain such registrations and qualifications in effect at all
times during the Registration Period, and (iv) take all other actions
reasonably necessary or advisable to qualify the Registrable Securities for
sale in such jurisdictions. Notwithstanding the foregoing provision, the
Company shall not be required in connection therewith or as a condition
thereto to (i) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) subject
itself to general taxation in any such jurisdiction, (iii) file a general
consent to service of process in any such jurisdiction, (iv) provide any
undertakings that cause more than nominal expense or burden to
the Company, or (v) make any change in its charter or bylaws, which in each
case the Board of Directors of the Company determines to be contrary to the
best interests of the Company and its stockholders.
(e) In the event the Investor holds a majority in interest of the
Registrable Securities being offered in an offering select underwriters for
such offering, the Company shall enter into and perform its obligations under
an underwriting agreement in usual and customary form including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering. The Company shall be responsible for
payment of the fees of such underwriters and the attorney fees and costs
incurred by one law firm selected by the Investor to represent its interests
in the underwritten offering. No Investor shall be obligated to participate
in any such underwriting.
(f) The Company shall notify the Investor who holds Registrable
Securities being sold pursuant to a Registration Statement of the happening
of any event of which the Company has knowledge as a result of which the
prospectus included in the Registration Statement as then in effect includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (a
"Suspension Event"). The Company shall make such notification as promptly as
practicable after the Company becomes aware of such Suspension Event, shall
promptly, but in all events within five (5) business days, use its best
efforts to prepare a supplement or amendment to the Registration Statement to
correct such untrue statement or omission, and shall deliver a number of
copies of such supplement or amendment to the Investor as the Investor may
reasonably request. Notwithstanding the foregoing provision, the Company
shall not be required to maintain the effectiveness of the Registration
Statement or to amend or supplement the Registration Statement for a period
(a "Delay Period") expiring upon the earlier to occur of (i) the date on
which such material information is disclosed to the public or ceases to be
material, (ii) the date on which the Company is able to comply with its
disclosure obligations and SEC requirements related thereto, or (iii) thirty
(30) days after the occurrence of the Suspension Event; provided, however,
that there shall not be more than two Delay Periods in any twelve (12) month
period. In the event that the aggregate number of days in all Delay Period(s)
taken together within a twelve-month period exceeds forty-five (45) days, or
in the event that there are more than two Delay Periods in any twelve-month
period, regardless of duration, the Company shall compensate the Investor for
such delay by making monthly cash payments, prorated on a daily basis, to the
Investor of one percent (1%) of the purchase price paid for the Registrable
Shares still held by the Investor at such time for the first month of a
Suspension Event, two percent (2%) of the purchase price paid for the
Registrable Shares held by the Investor each thirty (30) days thereafter for
the second month, and three percent (3%) of said purchase price for each
month thereafter, continuing through the date the Registration Statement is
declared effective by the SEC Delay Period ceases (the "Delay Compensation").
The Delay Compensation will begin to accrue on the thirty-first (31st) day
falling within one or more Suspension Events in any twelve-month period (or
on the first day of any Delay Period in excess of the first two Delay
Periods) and will be payable thirty days from that date and each thirty days
thereafter until the Registration Statement is brought effective.
(g) The Company shall use its best efforts to prevent the issuance
of any stop order or other suspension of effectiveness of a Registration
Statement and, if such an order is issued, shall use its best efforts to
obtain the withdrawal of such order at the earliest possible time and to
notify the Investor who holds Registrable Securities being sold (or, in the
event of an underwritten offering, the managing underwriters) of the issuance
of such order and the resolution thereof.
(h) The Company shall permit a single firm of counsel designated
by the Investor who hold a majority in interest of the Registrable Securities
being sold pursuant to such registration to review the Registration Statement
and all amendments and supplements thereto (as well as all requests for
acceleration or effectiveness thereof) a reasonable period of time prior to
their filing with the SEC, and shall not file any document in a form to which
such counsel reasonably objects.
(i) The Company shall make generally available to its security
Holders as soon as practical, but not later than ninety (90) days after the
close of the period covered thereby, an earnings statement (in a form
complying with the provisions of Rule 158 under the Securities Act) covering
a twelve-month period beginning not later than the first day of the Company's
fiscal quarter following the effective date of the Registration Statement.
(j) At the request of any Investor who holds Registrable
Securities being sold pursuant to such registration, the Company shall
furnish on the date that Registrable Securities are delivered to an
underwriter for sale in connection with the Registration Statement (i) a
letter, dated such date, from the Company's independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering, addressed to the Investor; and (ii) an opinion, dated such date,
from counsel representing the Company for purposes of such Registration
Statement, in form and substance as is customarily given in an underwritten
public offering, addressed to the underwriters and Investor.
(k) The Company shall make available for inspection by any
Investor whose Registrable Securities are being sold pursuant to such
registration, any underwriter participating in any disposition pursuant to
the Registration Statement, and any attorney, accountant or other agent
retained by the Investor or underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall be
reasonably necessary to enable each Inspector to exercise its due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information which any Inspector may reasonably request for
purposes of such due diligence; provided, however, that each Inspector shall
hold in confidence and shall not make any disclosure (except to an Investor)
of any Record or other information which the Company determines in good faith
to be confidential, and of which determination the Inspectors are so
notified, unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in any Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from
a court or government body of competent jurisdiction, or such release is
reasonably necessary in connection with litigation or other legal process or
(iii) the information in such Records has been made generally available to
the public other than by disclosure in violation of this or any other
agreement. The Company shall not be required to disclose any confidential
information in such Records to any Inspector until and unless such Inspector
shall have entered into confidentiality agreements (in form and substance
satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3(k). The Investor agrees that it
shall, upon learning that disclosure of such Records is sought in or by a
court or governmental body of competent jurisdiction or through other means,
give prompt notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of, or to
obtain a protective order for, the Records deemed confidential. Nothing
herein shall be deemed to limit the Investor's ability to sell Registrable
Securities in a manner which is otherwise consistent with applicable laws and
regulations.
(l) The Company shall hold in confidence and shall not make any
disclosure of information concerning an Investor provided to the Company
pursuant hereto unless (i) disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of such
information is necessary to avoid or correct a misstatement or omission in
any Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other order from a court or governmental body of
competent jurisdiction, or such release is reasonably necessary in connection
with litigation or other legal process or (iv) such information has been made
generally available to the public other than by disclosure in violation of
this or any other agreement. The Company agrees that it shall, upon learning
that disclosure of such information concerning an Investor is sought in or by
a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Investor and allow the Investor, at its
expense, to undertake appropriate action to prevent disclosure of, or to
obtain a protective order for, such information.
(m) The Company shall use its best efforts either to (i) cause all
the Registrable Securities covered by the Registration Statement to be listed
on NASDAQ, the AMEX or NYSE and on each additional national securities
exchange on which similar securities issued by the Company are then listed,
if any, if the listing of such Registrable Securities is then permitted under
the rules of such exchange, or (ii) secure designation of all the Registrable
Securities covered by the Registration Statement as a National Association of
Securities Dealers Automated Quotations System ("Nasdaq") "national market
system security" within the meaning of Rule 11Aa2-1 of the SEC under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
quotation of the Registrable Securities on the Nasdaq National Market System.
(n) The Company shall provide a transfer agent and registrar,
which may be a single entity, for the Registrable Securities not later than
the effective date of the Registration Statement.
(o) The Company shall cooperate with the Investor who holds
Registrable Securities being sold and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing Registrable
Securities to be sold pursuant to the Registration Statement and enable such
certificates to be in such denominations or amounts as the case may be, and
registered in such names as the managing underwriter or underwriters, if any,
or the Investor may reasonably request; and, within three (3) business days
after a Registration Statement which includes Registrable Securities is
ordered effective by the SEC, the Company shall deliver, and shall cause
legal counsel selected by the Company to deliver, to the transfer agent for
the Registrable Securities (with copies to the Investor whose Registrable
Securities are included in such Registration Statement) instructions to the
transfer agent to issue new stock certificates without a legend and an
opinion of such counsel that the Registrable Shares have been registered.
(p) The Company shall take all other reasonable actions necessary
to expedite and facilitate disposition by the Investor of the Registrable
Securities pursuant to the Registration Statement.
(q) At the request of any Investor, the Company shall promptly
prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to a Registration Statement and the prospectus
used in connection with the Registration Statement as may be necessary in
order to change the plan of distribution set forth in such Registration
Statement to conform to written information supplied to the Company by the
Investor for such purpose.
(r) The Company shall comply with all applicable laws related to a
Registration Statement and offering and sale of securities and all applicable
rules and regulations of governmental authorities in connection therewith.
(s) From and after the date of this Agreement, the Company shall
not, and shall not agree to, allow the holders of any securities of the
Company (other than the holders of the Registrable Securities) to include any
of their securities in any Registration Statement or any amendment or
supplement thereto under Section 2 hereof without the consent of the holders
of a majority of the Registrable Securities.
(t) If (i) the Company fails to make any Late Registration
Payment, Delay Compensation payment or penalty payment under the Lock-Up
Agreement when due and payable, (ii) the Company fails to cause the
Registration Statement to become effective on or before the date that is
ninety (90) days following the Required Effective Date, or a stop order is
entered by the SEC suspending the effectiveness of the Registration Statement
and such stop order is not vacated within ten (10) trading days (iii) the
aggregate number of days of Delay Period(s) exceed more than 120 days in any
twelve-month period, (iv) trading of the Company's Common Stock is halted or
suspended for a period of greater than three consecutive trading days (unless
such suspension is generally applicable to an exchange or exchanges), (v)
the Company ceases to have its shares listed on NASDAQ, the NYSE or AMEX, or
(vi) the Company fails to issue unlegended shares under the Lock-Up Agreement
within twenty (20) trading
days of the date that the Company is required to issue unlegended shares
pursuant to the Lock-Up Agreement, then, solely to the extent an Investor so
elects in the Investor's sole discretion, the Company shall within five (5)
business days of notice from the Investor repurchase the Common Shares held
by the Investor, in whole or in part. The Common Shares shall be purchased
at a price per share equal to greater of (x) $55.00, or (y) the "Market
Value" (as defined in the Warrant) of the Common Stock of the Company on the
date of repurchase. An Investor electing to sell Common Shares to the
Company under this provision may revoke such election at any time prior to
receipt of payment of the repurchase price by the Company. Late Registration
Payments and Delay Compensation obligations will cease to accrue as of the
date that Common Shares are repurchased by the Company pursuant to this
subsection with respect to the Common Shares so repurchased.
4. Obligations of the Investor. In connection with the registration
of the Registrable Securities, the Investor shall have the following
obligations:
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to the
Investor that the Investor shall furnish to the Company such information
regarding itself, the number of Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as
shall be reasonably required by rules of the SEC to effect the registration
of the Registrable Securities. The information so provided by the Investor
shall be included without material alteration in the Registration Statement
and shall not be modified without the Investor's written consent. At least
ten (10) business days prior to the first anticipated filing date of the
Registration Statement, the Company shall notify the Investor of the
information the Company requires from the Investor (the "Requested
Information") if the Investor elects to have the Investor's Registrable
Securities included in the Registration Statement. If within five (5)
business days of such notice the Company has not received the Requested
Information from an Investor (a "Non-Responsive Investor"), then the Company
may file the Registration Statement without including Registrable Securities
of such Non-Responsive Investor.
(b) The Investor, by its acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of the Registration Statement
hereunder, unless the Investor has notified the Company in writing of the
Investor's election to exclude all of the Investor's Registrable Securities
from the Registration Statement.
(c) In the event Investor holds a majority in interest of the
Registrable Securities being registered determine to engage the services of
an underwriter, the Investor agrees to enter into and perform the Investor's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such
other actions as are reasonably required in order to expedite or facilitate
the disposition of the Registrable Securities, unless the Investor has
notified the Company in writing of the Investor's election to exclude all of
the Investor's Registrable Securities from the applicable Registration
Statement. No Investor shall be obligated to participate in any such
underwriting.
(d) The Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(f)
or 3(g), the Investor will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until the Investor's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(f) or 3(g) and, if so directed
by the Company, the Investor shall deliver to the Company (at the expense of
the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies, other than file copies, in the Investor's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice.
(e) No Investor may participate in any underwritten registration
hereunder unless the Investor (i) agrees to sell the Investor's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Investor entitled hereunder to approve such arrangements, (ii) completes
and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements, and (iii) agrees to pay its pro rata share of all
underwriting discounts and commissions and other fees and expenses of
investment bankers and any manager or managers of such underwriting and legal
expenses of the underwriter applicable with respect to its Registrable
Securities, in each case to the extent not payable by the Company pursuant to
the terms of this Agreement.
5. Expenses of Registration. All expenses, other than underwriting
discounts and commissions, incurred in connection with registrations, filings
or qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees, printers and
accounting fees, the fees and disbursements of counsel for the Company, and
the reasonable fees and disbursements of one counsel selected by the Initial
Investor pursuant to Section 3(e) hereof, shall be borne by the Company.
6. Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Investor who holds such Registrable Securities, the
directors, if any, of the Investor, the officers, if any, of the Investor,
each person, if any, who controls any Investor within the meaning of the
Securities Act or the Exchange Act, any underwriter (as defined in the
Securities Act) for the Investor, the directors, if any, of such underwriter
and the officers, if any, of such underwriter, and each person, if any, who
controls any such underwriter within the meaning of the Securities Act or the
Exchange Act (each, an "Indemnified Person"), against any losses, claims,
damages, expenses or liabilities (joint or several) (collectively "Claims")
to which any of them become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations in the Registration
Statement, or any post-effective amendment thereof, or any prospectus
included therein: (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any post-effective
amendment thereof or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus
if used prior to the effective date of such Registration Statement, or
contained in the final prospectus (as amended or supplemented, if the Company
files any amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which
the statements therein were made, not misleading, or (iii) any violation or
alleged violation by the Company of the Securities Act, the Exchange Act or
any state securities law or any rule or regulation (the matters in the
foregoing clauses (i) through (iii) being, collectively, "Violations").
Subject to the restrictions set forth in Section 6(c) with respect to the
number of legal counsel, the Company shall reimburse the Investor and each
such underwriter or controlling person, promptly as such expenses are
incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (A) shall not
apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
hereof; (B) with respect to any preliminary prospectus shall not inure to
the benefit of any such person from whom the person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was
corrected in the prospectus, as then amended or supplemented, if a prospectus
was timely made available by the Company pursuant to Section 3(c) hereof; and
(C) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld. Such indemnity shall
remain in full force
and effect regardless of any investigation made by or on behalf of the
Indemnified Persons and shall survive the transfer of the Registrable
Securities by the Investor pursuant to Section 9.
(b) In connection with any Registration Statement in which an
Investor is participating, the Investor, severally and not jointly, agrees to
indemnify and hold harmless, to the same extent and in the same manner set
forth in Section 6(a), the Company, each of its directors, each of its
officers who signs the Registration Statement, each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act, any underwriter and any other stockholder selling securities pursuant to
the Registration Statement or any of its directors or officers or any person
who controls such stockholder or underwriter within the meaning of the
Securities Act or the Exchange Act (collectively and together with an
Indemnified Person, an "Indemnified Party"), against any Claim to which any
of them may become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by the Investor expressly for use in connection with
such Registration Statement, and the Investor will promptly reimburse any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the
indemnity agreement contained in this Section 6(b) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the
prior written consent of the Investor, which consent shall not be
unreasonably withheld; provided further, however, that the Investor shall be
liable under this Section 6(b) for only that amount of a Claim as does not
exceed the net proceeds to the Investor as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities by the Investor pursuant
to Section 9. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(b) with respect to any
preliminary prospectus shall not inure to the benefit of any Indemnified
Party if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented.
(c) Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to made against any
indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof and this indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly noticed, to
assume control of the defense thereof with counsel mutually satisfactory to
the indemnifying parties; provided, however, that an Indemnified Person or
Indemnified Party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if, in the reasonable
opinion of counsel retained by the indemnifying party, the representation by
such counsel of the Indemnified Person or Indemnified Party and the
indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified Party and
other party represented by such counsel in such proceeding. The Company
shall pay for only one separate legal counsel for the Investor; such legal
counsel shall be selected by the Investor holding a majority in interest of
the Registrable Securities. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend
such action. The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is
incurred and is due and payable. The provisions of this Section 6 shall
survive the termination of this Agreement.
7. Contribution. If the indemnification provided for in Section 6
herein is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages or
liabilities as between the Company on the one hand and any Investor on the
other, in such proportion as is appropriate to reflect the relative fault of
the Company and of the Investor in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of
the Company on the one hand and of any Investor on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Investor.
In no event shall the obligation of any Indemnifying Party to contribute
under this Section 7 exceed the amount that such Indemnifying Party would
have been obligated to pay by way of indemnification if the indemnification
provided for under Section 6(a) or 6(b) hereof had been available under the
circumstances.
The Company and the Investor agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Investor or the underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraphs. The amount paid or payable by an Indemnified Party as
a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraphs shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this section, no
Investor or underwriter shall be required to contribute any amount in excess
of the amount by which (i) in the case of any Investor, the net proceeds
received by the Investor from the sale of Registrable Securities or (ii) in
the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that the Investor
or underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act ) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Public Information. With a view to making available to the
Investor the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the SEC that may at any time permit the
Investor to sell securities of the Company to the public without registration
("Rule 144"), the Company agrees to:
(a) File with the SEC in a timely manner and make and keep
available all reports and other documents required of the Company under the
Exchange Act so long as the Company remains subject to such requirements and
the filing and availability of such reports and other documents is required
for the applicable provisions of Rule 144; and
(b) Furnish to the Investor so long as the Investor holds
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 and
the Exchange Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company,
and (iii) such other information as may be reasonably requested to permit the
Investor to sell such securities pursuant to Rule 144 without registration.
9. Assignment of Registration Rights. The rights to have the Company
register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Investor to transferees or assignees of all or
any portion of such securities or Warrants exercisable into Registrable
Securities only if (i) the Investor agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to
the Company within a reasonable time after such assignment, (ii) the Company
is, within a reasonable time after such transfer or assignment, furnished
with written notice of the name and
address of such transferee or assignee and the securities with respect to
which such registration rights are being transferred or assigned, (iii)
following such transfer or assignment the further disposition of such
securities by the transferee or assignee is restricted under the Securities
Act and applicable state securities laws, (iv) at or before the time the
Company received the written notice contemplated by clause (ii) of this
sentence, the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein, (v) such transfer shall have
been made in accordance with the applicable requirements of the Purchase
Agreement, and (vi) such transferee shall be an "accredited investor" as that
term is defined in Rule 501 of Regulation D promulgated under the Securities
Act.
10. Amendment of Registration Rights. Provisions of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Investor. Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon the
Investor and the Company.
11. Miscellaneous.
(a) Conflicting Instructions. A person or entity is deemed to be
a holder of Registrable Securities whenever such person or entity owns of
record such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons or entities with
respect to the same Registrable Securities, the Company shall act upon the
basis of instructions, notice or election received from the registered owner
of such Registrable Securities.
(b) Notices. Any notices required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered mail
(with return receipt requested) or delivered personally or by courier
(including a nationally recognized overnight delivery service) or by
facsimile transmission. Any notice so given shall be deemed effective upon
receipt if delivered personally, by U.S. Mail or by courier or facsimile
transmission, in each case addressed to a party at the following address or
such other address as each such party furnishes to the other in accordance
with this Section 12(b), and:
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: Xxx Xxxx, Esq.
Facsimile: (000) 000-0000
if to the Investor:
___________________________
___________________________
___________________________
Attention:
Facsimile:
With copy to:
___________________________
___________________________
___________________________
Attention:
Facsimile:
(c) Waiver. Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such
right or remedy, shall not operate as a waiver thereof.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the 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 the
Investor irrevocably waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding in such forum. The Company and the
Investor further agrees that service of process upon the Company or the
Investor, as applicable, in accordance with Section 11(b) shall be deemed in
every respect effective service of process upon the Company or the Investor
in any suit or proceeding arising hereunder. Nothing herein contained shall
affect Investor'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.
(e) Severability. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any provision hereof which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability
of any other provision hereof.
(f) Entire Agreement. This Agreement, the Lock-Up Agreement and the
Purchase Agreement (including all schedules and exhibits thereto) constitute
the entire agreement among the parties hereto with respect to the subject
matter hereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein.
This Agreement supersedes all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof.
(g) Successors and Assigns. Subject to the requirements of Section
9 hereof, this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto.
(h) Use of Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
(i) Headings. The headings and subheadings in the Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same agreement. This Agreement, once executed
by a party, may be delivered to the other party hereto by facsimile
transmission, and facsimile signatures shall be binding on the parties hereto.
(k) Further Acts. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(l) Remedies. No provision of this Agreement providing for any
remedy to a Investor shall limit any remedy which would otherwise be
available to the Investor at law or in equity. Nothing in this Agreement
shall limit any rights a Investor 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 Investor. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under
this Agreement will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Agreement, that a
Investor 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.
(m) Consents. All consents and other determinations to be made by
the Investor pursuant to this Agreement shall be made by the Investor holding
66 2/3% of the Registrable Securities, determined as if all Warrants then
outstanding had been exercised for Registrable Securities.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
COMPANY:
MIRAVANT MEDICAL TECHNOLOGIES
By:_____________________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
Date: __________, 1997
INVESTOR:
_________________________________
By:______________________________
Name:
Title:
Date: __________, 1997
