SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): JUNE 30, 1998
MIRAVANT MEDICAL TECHNOLOGIES
(Exact name of registrant as specified in its charter)
Delaware 0-25544 77-0222872
State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
7408 Hollister Avenue
Santa Barbara, California 93117
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (805) 685-9880
<PAGE>
ITEM 5. Other Events
AMENDMENT OF SECURITIES PURCHASE AGREEMENT
MIRAVANT MEDICAL TECHNOLOGIES (the "Company") has entered into an Amendment
Agreement dated June 30, 1998 (the "Amendment Agreement") amending certain
provisions of the Transaction Documents (defined below), including the
Securities Purchase Agreement dated September 22, 1997 (the "Original Purchase
Agreement") among the Company, on the one hand, and Stark International,
Shepherd Investments International, Staro Partners, Elliott Associates, L.P. and
Westgate International, L.P. (the "Purchasers"), on the other hand. Under the
Original Purchase Agreement, 900,000 shares (the "Shares") of the Company's
Common Stock (the "Common Stock") were issued to the Purchasers at $50.00 per
share (the "Closing Price") in the Company's 1997 private offering, along with
Common Stock Purchase Warrants for 900,000 shares (the "Warrant Shares"), half
of which were exercisable at $55.00 per Share and half of which were exercisable
at $60.00 per Share (the "Warrants"), and the Purchasers entered into a Lock-Up
Agreement and a Registration Rights Agreement (collectively, with Original
Purchase Agreement and the Warrants, the "Transaction Documents"). The
Transaction Documents were previously filed with the Securities and Exchange
Commission as exhibits to the Company's Registration Statement on Form S-3 dated
December 5, 1997 (Registration No. 333-33905) relating to the resale of up to
3,540,000 shares of Common Stock, including the Shares and the Warrant Shares,
by the selling shareholders named therein, including the Purchasers.
The following is a summary of certain of the amendments made to the
Transaction Documents pursuant to the Amendment Agreement.
1. The Lock-Up Agreement was amended to extend the expiration date of the
prohibition on sales of the Shares and the Warrant Shares from September 22,
1998 to March 1, 1999; provided however, that the restriction now terminates as
to 1/8th of the Shares and Warrant Shares on each monthly anniversary date
beginning August 1, 1998 and ending on March 1, 1999 (each a "Monthly
Anniversary Date"). Additionally, the provision permitting certain limited sales
prior to the expiration date based on the market price of the Common Stock for
the ten (10) trading days preceding any such sale was amended by reducing such
price from $70.00 to $55.00. The Lock-Up Agreement remains subject to earlier
termination in certain limited circumstances.
2. The price protection provisions of Section 5.3 of the Original Purchase
Agreement required the Company to issue either additional shares or pay cash to
the Purchasers, at the Company's option, if the 30 day average closing bid price
of the Common Stock prior to September 22, 1998 was less than the Closing Price.
Under the Amendment Agreement, the Company's obligation is now divided into
eight increments; in determining the number of additional shares of Common Stock
or cash that the Company will be required to issue or pay, the difference
between the Closing Price and the 30 day average closing bid price of the Common
Stock will be measured on each Monthly Anniversary Date (the "Monthly
Anniversary Price"), and the resulting difference will be multiplied by 1/8th of
the Shares which have not been sold or assigned. Further, the number of
additional shares which the Company may elect to issue to the Purchasers under
amended Section 5.3 is now capped at 900,000 shares, with any additional amounts
required to be paid in cash in the event that any Monthly Anniversary Price is
less than $25.00.
3. Under the Amendment Agreement, the Company has the right until March 1,
1999 to repurchase for cash all or (on a pro rata basis among the Purchasers) a
part of the Shares at the Closing Price, and to terminate all the Purchasers'
rights under the Amendment Agreement and the Original Purchase Agreement with
respect to the repurchased Shares, including the price protection provisions. If
the Company completes the repurchase of all of the Shares at the Closing Price
within sixty (60) calendar days from the date of the Amendment Agreement, the
Company will have no obligation to issue the Additional Warrants (as defined
below in paragraph 4).
4. The exercise price of the Warrants is now $35.00 per share, and subject
to certain limitations, the Warrant Shares are now redeemable at the option of
the Company in whole or in part at par value if the closing bid price of the
Common Stock for twenty (20) consecutive trading days is greater than $60.00 per
share. If the Company does not repurchase all of the Shares within sixty (60)
calendar days from the date of the Amendment Agreement, the Company is required
to issue to the Purchasers additional warrants to purchase up to 450,000 shares
of Common Stock at an exercise price of $35.00 per share (the "Additional
Warrants") upon the termination of the restrictions under the Lock-Up Agreement.
The foregoing is merely a summary of certain of the amendments made to the
Transaction Documents and not intended to be a complete description thereof.
Also, certain additional changes were made to the Original Purchase Agreement,
the Lock-Up Agreement and the Registration Rights Agreement. Reference is hereby
made to the Amendment Agreement and the other exhibits filed with this Report on
Form 8-K for the full text of the amendments and those described above.
REPURCHASE OF 225,000 SHARES
On July 10, 1998, the Company notified the Purchasers of its election under
the Amendment Agreement to repurchase those Shares subject to the amended price
protection provisions described above for the first two (2) Monthly Anniversary
Dates (225,000 shares) at the original Closing Price. This repurchase will
eliminate the Company's obligation to issue additional shares or pay cash under
the amended price protection provisions with respect to the repurchased Shares.
Payment for the Shares will be delivered to the Purchasers in cash no earlier
than twelve (12) business days and no later than two (2) business days before
August 1, 1998. The Company retains the right until March 1, 1999 to similarly
repurchase the remaining Shares (675,000 Shares) and thereby eliminate the
Company's obligation under the amended price protection provisions to issue
additional shares or pay cash with respect to such Shares.
ITEM 7. Exhibits
Exhibit
Number Exhibit
- ------ -------
4.1 Form of $35 Amended and Restated Common Stock Purchase
Warrant issued to the Purchasers
4.2 Form of $35 Additional Common Stock Purchase Warrant
10.1 Amendment Agreement dated June 30, 1998 to Securities
Purchase Agreement dated September 22, 1997 by and among the
Registrant and the Purchasers
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MIRAVANT MEDICAL TECHNOLOGIES
By: /S/JOHN M. PHILPOTT
------------------------
John M. Philpott
Chief Financial Officer
Date: July 17, 1998
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------ -------
4.1 Form of $35 Amended and Restated Common Stock Purchase
Warrant issued to the Purchasers
4.2 Form of $35 Additional Common Stock Purchase Warrant
10.1 Amendment Agreement dated June 30, 1998 to Securities
Purchase Agreement dated September 22, 1997 by and among
the Registrant and the Purchasers
Miravant Medical Technologies September 25, 1997
Common Stock Purchase Warrant Certificate
EXHIBIT B
TO AMENDMENT AGREEMENT
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE "SECURITIES
ACT"). THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION UNDER THE SECURITIES ACT OR UNLESS SUCH OFFER, SALE OR TRANSFER IS
EXEMPT FROM SUCH REGISTRATION.
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT CERTIFICATE
Dated: September 25, 1997
to Purchase [NO] Shares of Common Stock, par value $.01 per Share, of
Miravant Medical Technologies
Miravant Medical Technologies, a Delaware corporation (the "Company"),
hereby certifies that [HOLDER] its permissible transferees, designees,
successors and assigns (collectively, the "Holder"), for value received, is
entitled to purchase from the Company at any time commencing on September 25,
1997, and terminated on December 25, 2001 ("Termination Date") up to [NO](#)
shares (each a "Share" and collectively the "Shares") of the Company's common
stock par value $.01 per Share (the "Common Stock"), at an exercise price of
Thirty-Five Dollars ($35.00) per Share (the "Exercise Price"). The number of
Shares purchasable hereunder and the Exercise Price are subject to adjustment as
provided in Section 4 hereof.
1. Exercise of Warrants.
(a) Upon presentation and surrender of this Common Stock
Purchase Warrant Certificate ("Warrant Certificate" or "Certificate"),
accompanied by a completed Election to Purchase in the form attached hereto as
Exhibit A (the "Election to Purchase") duly executed, at the principal office of
the Company currently located at 7408 Hollister Avenue, Santa Barbara, CA 90401,
Attn: Gary S. Kledzik, Chief Executive Officer, (or such other office or agency
of the Company within the United States as the Company may designate to the
Holder) together with a check payable to, or wire transfer to, the Company in
the amount of the Exercise Price multiplied by the number of Shares being
purchased, the Company or the Company's Transfer Agent, as the case may be,
shall within three (3) business days deliver to the Holder hereof certificates
of fully paid and non-assessable Common Stock which in the aggregate represent
the number of Shares being purchased; provided, however, that the Holder may
elect to utilize the cashless exercise provisions set forth below in lieu of
tendering the Exercise Price in cash. The certificates so delivered shall be in
such denominations as may be requested by the Holder and shall be registered in
the name of the Holder or such other name as shall be designated by the Holder.
All or less than all of the Warrants represented by this Certificate may be
exercised and, in case of the exercise of less than all, the Company, upon
surrender hereof, will at the Company's expense deliver to the Holder a new
Warrant Certificate or Certificates of like tenor and dated the date hereof
entitling said holder to purchase the number of Shares represented by this
Certificate which have not been exercised and to receive Registration Rights
with respect to such Shares.
(b) Cashless Exercise. Notwithstanding the foregoing provision
regarding payment of the Exercise Price in cash, the Holder may, unless the
Company has prior to Holder's delivery of an Election to Purchase, notified the
Holder in writing that cashless exercise of the Warrant will not be honored (and
the Company has not withdrawn such notice), elect to receive a reduced number of
Shares in lieu of tendering the Exercise Price in cash. The Company may, at any
time prior to delivery by Holder of a Election to Purchase, by notice in writing
rescind any previously delivered notice requiring cash exercise. In the case of
cashless exercise the number of Shares to be issued to the Holder shall be
computed using the following formula:
X = Y(A-B)
----------
A
where: X = the number of Shares to be issued to the Holder;
Y = the number of Shares to be exercised under this Warrant
Certificate;
A = the Market Value (defined below) of one share
of Common Stock; and
B = the Exercise Price.
As used herein, "Market Value" refers to the closing bid price of the Common
Stock (as reported by Bloomberg, L.P.) on the day before the date that Election
to Purchase and this Warrant Certificate are duly surrendered to the Company for
a full or partial exercise hereof. Notwithstanding the foregoing definition, if
the Common Stock is not listed on a national securities exchange or quoted in
the Nasdaq System at the time said Election to Purchase is submitted to the
Company in the foregoing manner, the Market Value of the Common Stock shall be
as determined in good faith by the Board of Directors of the Company, unless the
Company shall become subject to a merger, acquisition, or other consolidation
pursuant to which the Company is not the surviving entity, in which case the
Market Value of the Common Stock shall be deemed to be the value received by the
Company's common stockholders pursuant to such merger, acquisition or other
consolidation.
(c) Company Redemption Right. Prior to the Termination Date,
the Company shall be entitled to redeem this Warrant Certificate for the price
of one cent ($0.01) in the event that the closing bid price of the Common Stock
(as reported by Bloomberg, L.P.) for the twenty (20) consecutive trading days
immediately preceding a particular date (the "Calculation Date") is greater than
Sixty Dollars ($60.00) per Share (subject to adjustment in accordance with
Section 4 hereof); provided however, that the Company shall have such right if
and only if at all times during such twenty (20) trading day period of time the
Shares of Common Stock were listed on NASDAQ National Market, the New York Stock
Exchange or the American Stock Exchange and at all times during such period of
time the Shares issuable upon exercise of the Warrants were registered for
resale pursuant to an effective registration statement, were included in a
current and deliverable prospectus, and were listed for trading on each
principal exchange or market on which the shares of Common Stock of the Company
were then traded. If the Company wishes to redeem the Warrants, it shall within
three (3) trading days of the Calculation Date (the "Notice Date") give the
Holder written irrevocable notice of its intent to redeem this Warrant
Certificate or else be prohibited from redeeming this Warrant Certificate in
connection with such Calculation Date. That irrevocable written notice shall
specify the number of Warrants to be redeemed (i.e., the number of Common Shares
that will cease to be issuable pursuant to this Warrant Certificate); this
Warrant Certificate shall be exerciseable through and including the date set for
redemption, which shall be five (5) trading days after the Notice Date. If the
Company chooses to submit a notice to redeem this Certificate covering a greater
number of Shares than the proportionate number of Shares that have been removed
from the transfer restrictions pursuant to Section 1.5 of the Lock-Up Agreement
dated September 22, 1997 by and between the Company and the Holder, as amended,
the number of Shares removed from the transfer restrictions pursuant to such
Section 1.5 will automatically be increased to the higher number of Shares
specified in such notice.
2. Exchange, Transfer and Replacement. (a) At any time prior to the
exercise hereof, this Certificate may be exchanged upon presentation and
surrender to the Company, alone or with other Certificates of like tenor of
different denominations registered in the name of the same Holder, for another
Certificate or Certificates of like tenor in the name of such Holder exercisable
for the aggregate number of Shares as the Certificate or Certificates
surrendered.
(b) Replacement of Warrant Certificate. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, destruction,
or mutilation of this Warrant Certificate and, in the case of any such loss,
theft, or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company, or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant Certificate, the
Company, at its expense, will execute and deliver in lieu thereof, a new Warrant
Certificate of like tenor.
(c) Cancellation; Payment of Expenses. Upon the surrender of
this Warrant Certificate in connection with any transfer, exchange or
replacement as provided in this Section 2, this Warrant Certificate shall be
promptly canceled by the Company. The Company shall pay all taxes (other than
securities transfer taxes) and all other expenses (other than legal expenses, if
any, incurred by the Holder or transferees) and charges payable in connection
with the preparation, execution and delivery of Warrant Certificates pursuant to
this Section 2.
(d) Warrant Register. The Company shall maintain, at its
principal executive offices (or at the offices of the transfer agent for the
Warrant Certificate or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this Warrant
Certificate (the "Warrant Register"), in which the Company shall record the name
and address of the person in whose name this Warrant Certificate has been
issued, as well as the name and address of each transferee and each prior owner
of this Warrant Certificate.
3. Rights and Obligations of Holders of this Certificate. The Holder of
this Certificate shall not, by virtue hereof, be entitled to any rights of a
stockholder in the Company, either at law or in equity; provided, however, that
in the event any certificate representing shares of Common Stock or other
securities is issued to the holder hereof upon exercise of some or all of the
Warrants, such holder shall, for all purposes, be deemed to have become the
holder of record of such Common Stock on the date on which this Certificate,
together with a duly executed Election to Purchase, was surrendered and payment
of the aggregate Exercise Price was made, irrespective of the date of delivery
of such Common Stock certificate.
4. Adjustments.
(a) Stock Dividends, Reclassifications, Recapitalizations,
Etc. In the event the Company: (i) pays a dividend in Common Stock or makes a
distribution in Common Stock, (ii) subdivides its outstanding Common Stock into
a greater number of shares, (iii) combines its outstanding Common Stock into a
smaller number of shares or (iv) increases or decreases the number of shares of
Common Stock outstanding by reclassification of its Common Stock (including a
recapitalization in connection with a consolidation or merger in which the
Company is the continuing corporation), then (1) the Exercise Price on the
record date of such division or distribution or the effective date of such
action shall be adjusted by multiplying such Exercise Price by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately before such event and the denominator of which is the number of
shares of Common Stock outstanding immediately after such event, and (2) the
number of shares of Common Stock for which this Warrant Certificate may be
exercised immediately before such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the Exercise Price immediately
before such event and the denominator of which is the Exercise Price immediately
after such event.
(b) Cash Dividends and Other Distributions. In the event that
at any time or from time to time the Company shall distribute to all holders of
Common Stock (i) any dividend or other distribution of cash, evidences of its
indebtedness, shares of its capital stock or any other properties or securities
or (ii) any options, warrants or other rights to subscribe for or purchase any
of the foregoing (other than in each case, (w) the issuance of any rights under
a shareholder rights plan, (x) any dividend or distribution described in Section
4(a), (y) any rights, options, warrants or securities described in Section 4(c)
and (z) any cash dividends or other cash distributions from current or retained
earnings), then the number of shares of Common Stock issuable upon the exercise
of each Warrant Certificate shall be increased to a number determined by
multiplying the number of shares of Common Stock issuable upon the exercise of
such Warrant Certificate immediately prior to the record date for any such
dividend or distribution by a fraction, the numerator of which shall be such
Current Market Value (as hereinafter defined) per share of Common Stock on the
record date for such dividend or distribution, and the denominator of which
shall be such Current Market Value per share of Common Stock on the record date
for such dividend or distribution less the sum of (x) the amount of cash, if
any, distributed per share of Common Stock and (y) the fair value (as determined
in good faith by the Board of Directors of the Company, whose determination
shall be evidenced by a board resolution, a copy of which will be sent to the
Holders upon request) of the portion, if any, of the distribution applicable to
one share of Common Stock consisting of evidences of indebtedness, shares of
stock, securities, other property, warrants, options or subscription or purchase
rights; and the Exercise Price shall be adjusted to a number determined by
dividing the Exercise Price immediately prior to such record date by the above
fraction. Such adjustments shall be made whenever any distribution is made and
shall become effective as of the date of distribution, retroactive to the record
date for any such distribution. No adjustment shall be made pursuant to this
Section 4(b) which shall have the effect of decreasing the number of shares of
Common Stock issuable upon exercise of each Warrant Certificate or increasing
the Exercise Price.
(c) Rights Issue. In the event that at any time or from time
to time the Company shall issue rights, options or warrants entitling the
holders thereof to subscribe for shares of Common Stock, or securities
convertible into or exchangeable or exercisable for Common Stock to all holders
of Common Stock (other than in connection with the adoption of a shareholder
rights plan by the Company) without any charge, entitling such holders to
subscribe for or purchase shares of Common Stock at a price per share that as of
the record date for such issuance is less than the then Current Market Value per
share of Common Stock, the number of shares of Common Stock issuable upon the
exercise of each Warrant Certificate shall be increased to a number determined
by multiplying the number of shares of Common Stock theretofore issuable upon
exercise of each Warrant Certificate by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding on the date of issuance of
such rights, options, warrant or securities plus the number of additional shares
of Common Stock offered for subscription or purchase or into or for which such
securities that are issued are convertible, exchangeable or exercisable, and the
denominator of which shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights, option, warrants or securities plus the
total number of shares of Common Stock which the aggregate consideration
expected to be received by the Company (assuming the exercise or conversion of
all such rights, options, warrants or securities) would purchase at the then
Current Market Value per share of Common Stock. In the event of any such
adjustment, the Exercise Price shall be adjusted to a number determined by
dividing the Exercise price immediately prior to such date of issuance by the
aforementioned fraction. Such adjustment shall be immediately after such rights,
options or warrants are issued and shall become effective, retroactive to the
record date for the determination of stockholders entitled to receive such
rights, options, warrants or securities. No adjustment shall be made pursuant to
this Section 4(c) which shall have the effect of decreasing the number of shares
of Common Stock purchasable upon exercise or each Warrant Certificate or of
increasing the Exercise Price.
(d) Combination: Liquidation. (i) Except as provided in
Section 4(d)(ii) below, in the event of a Combination (as defined below), each
Holder shall have the right to receive upon exercise of the Warrant Certificates
the kind and amount of shares of capital stock or other securities or property
which such Holder would have been entitled to receive upon or as a result of
such Combination had such Warrant Certificate been exercised immediately prior
to such event (subject to further adjustment in accordance with the terms
hereof). Unless paragraph (ii) is applicable to a Combination, the Company shall
provide that the surviving or acquiring Person (the "Successor Company") in such
Combination will assume by written instrument the obligations under this Section
4 and the obligations to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the Holder may be
entitled to acquire. The provisions of this Section 4(d)(i) shall similarly
apply to successive Combinations involving any Successor Company. "Combination"
means an event in which the Company consolidates with, mergers with or into, or
sells all or substantially all of its assets to another Person, where "Person"
means any individual, corporation, partnership, joint venture, limited liability
company, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
(ii) In the event of (x) a Combination where consideration to
the holders of Common Stock in exchange for their shares is payable solely in
cash or (y) the dissolution, liquidation or winding-up of the Company, the
Holders shall be entitled to receive, upon surrender of their Warrant
Certificates, distributions on an equal basis with the holders of Common Stock
or other securities issuable upon exercise of the Warrant Certificates, as if
the Warrant Certificates had been exercised immediately prior to such event,
less the Exercise Price. In case of any Combination described in this Section
4(d)(ii), the surviving or acquiring Person and, in the event of any
dissolution, liquidation or winding-up of the Company, the Company, shall
deposit promptly with an agent or trustee for the benefit of the Holders of the
funds, if any, necessary to pay to the Holders the amounts to which they are
entitled as described above. After such funds and the surrendered Warrant
Certificates are received, the Company is required to deliver a check in such
amount as is appropriate (or, in the case or consideration other than cash, such
other consideration as is appropriate) to such Person or Persons as it may be
directed in writing by the Holders surrendering such Warrant Certificates.
(e) Notice of Adjustment. Whenever the Exercise Price or the
number of shares of Common Stock and other property, if any, issuable upon
exercise of the Warrant Certificates is adjusted, as herein provided, the
Company shall deliver to the holders of the Warrant Certificates in accordance
with Section 10 a certificate of the Company's Chief Financial Officer setting
forth, in reasonable detail, the event requiring the adjustment and the method
by which such adjustment was calculated (including a description of the basis on
which (i) the Board of Directors determined the fair value of any evidences of
indebtedness, other securities or property or warrants, options or other
subscription or purchase rights and (ii) the Current Market Value of the common
Stock was determined, if either of such determinations were required), and
specifying the Exercise Price and number of shares of Common Stock issuable upon
exercise of Warrant Certificates after giving effect to such adjustment.
(f) Notice of Certain Transactions. In the event that the
Company shall propose (a) to pay any dividend payable in securities of any class
to the holders of its Common Stock or to make any other non-cash dividend or
distribution to the holders of its Common Stock, (b) to offer the holders of its
Common Stock rights to subscribe for or to purchase any securities convertible
into shares of Common Stock or shares of stock of any class or any other
securities, rights or options, (c) to effect any capital reorganization,
reclassification, consolidation or merger affecting the class of Common Stock,
as a whole, or (d) to effect the voluntary or involuntary dissolution,
liquidation or winding-up of the Company, the Company shall, within the time
limits specified below, send to each Holder a notice of such proposed action or
offer. Such notice shall be mailed to the Holders at their addresses as they
appear in the Warrant Register (as defined in Section 2(d)), which shall specify
the record date for the purposes of such dividend, distribution or rights, or
the date such issuance or event is to take place and the date of participation
therein by the holders of Common Stock, if any such date is to be fixed, and
shall briefly indicate the effect of such action on the Common Stock and on the
number and kind of any other shares of stock and on other property, if any, and
the number of shares of Common Stock and other property, if any, issuable upon
exercise of each Warrant Certificate and the Exercise Price after giving effect
to any adjustment pursuant to Section 4 which will be required as a result of
such action. Such notice shall be given as promptly as possible and (x) in the
case of any action covered by clause (a) or (b) above, at least 10 days prior to
the record date for determining holders of the Common Stock for purposes of such
action or (y) in the case of any other such action, at least 20 days prior to
the date of the taking of such proposed action or the date of participation
therein by the holders of Common Stock, whichever shall be the earlier.
(g) Current Market Value. "Current Market Value" per share of
Common Stock or any other security at any date means (i) if the security is not
registered under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (a) the value of the security, determined in good faith by the Board of
Directors of the Company and certified in a board resolution, based on the most
recently completed arm's-length transaction between the Company and a Person
other than an affiliate of the Company or between any two such Persons and the
closing of which occurs on such date or shall have occurred within the six-month
period preceding such date, or (b) if no such transaction shall have occurred
within the six-month period, the value of the security as determined by an
independent financial expert or (ii) if the security is registered under the
Exchange Act, the average of the daily closing bid prices (or the equivalent in
an over-the-counter market) for each day on which the Common Stock is traded for
any period on the principal securities exchange or other securities market on
which the common Stock is being traded (each, a "Trading Day") during the period
commencing ten (10) Trading Days before such date and ending on the date one day
prior to such date, or if the security has been registered under the Exchange
Act for less than ten (10) consecutive Trading Days before such date, the
average of the daily closing bid prices (or such equivalent) for all of the
Trading Days before such date for which daily closing bid prices are available;
provided, however, that if the closing bid price is not determinable for at
least five (5) Trading Days in such period, the "Current Market Value" of the
security shall be determined as if the security were not registered under the
Exchange Act.
(h) Other Adjustments. If the event of any other transaction
of the type contemplated by this Section 4, but not expressly provided for by
the provisions hereof, the Board of Directors of the Company will make
appropriate adjustment in the Exercise Price so as to equitably protect the
rights of the Holder.
(i) No Impairment of Holder's Rights. The Company will not, by
amendment of its certificate of incorporation or bylaws or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant Certificate, but
will at all times in good faith assist in the carrying out of all such terms and
in the taking of all action as may be necessary or appropriate in order to
protect the rights of the Holder against dilution or other impairment.
5. Company's Representations.
(a) The Company covenants and agrees that all shares of Common
Stock issuable upon exercise of this Warrant Certificate will, upon delivery, be
duly and validly authorized and issued, fully-paid and non-assessable and free
from all taxes, liens, claims and encumbrances.
(b) The Company covenants and agrees that it will at all times
reserve and keep available an authorized number of shares of its Common Stock
and other applicable securities sufficient to permit the exercise in full of all
outstanding options, warrants and rights, including this Warrant Certificate.
(c) The Company shall promptly secure the listing of the
Shares upon each national securities exchange or automated quotation system, if
any, upon which shares of Common Stock are then listed or become listed (subject
to official notice of issuance upon exercise of this Warrant Certificate) and
shall maintain, so long as any other shares of Common Stock shall be so listed,
such listing of all shares of Common Stock from time to time issuable upon the
exercise of this Warrant Certificate; and the Company shall so list on each
national securities exchange or automated quotation system, as the case may be,
and shall maintain such listing of, any other shares of capital stock of the
company issuable upon the exercise of this Warrant Certificate if and so long as
any shares of the same class shall be listed on such national securities
exchange or automated quotation system.
(d) The Company has taken all necessary action and proceedings
as required and permitted by applicable law, rule and regulation, including,
without limitation, the notification of the principal market on which the Common
Stock is traded, for the legal and valid issuance of this Warrant Certificate to
the Holder under this Warrant Certificate.
(e) The Warrant Shares, when issued in accordance with the
terms hereof, will be duly authorized and, when paid for or issued in accordance
with the terms hereof, shall be validly issued, fully paid and non-assessable.
The Company has authorized and reserved for issuance to Warrant Holder the
requisite number of shares of Common Stock to be issued pursuant to this
Warrant.
(f) With a view to making available to Holder the benefits of
Rule 144 promulgated under the Act and any other rule or regulation of the
Securities and Exchange Commission ("SEC") that may at any time permit Holder to
sell securities of the Company to the public without registration, the Company
agrees to use its reasonable best efforts to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and
(iii) furnish to any Holder forthwith upon request a written statement
by the Company that it has complied with the reporting requirements of Rule
144 and of the Act and the Exchange Act, a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested to permit any such
Holder to take advantage of any rule or regulation of the SEC permitting
the selling of any such securities without registration.
6. Registration Rights. The Holder is entitled to the benefit of such
registration rights in respect of the Shares as are set forth in the
Registration Rights Agreement dated as of September 25, 1997, as amended, by and
between the Company and the Holder.
7. Fractional Shares: Legends. (a) In lieu of issuance of a fractional
share upon any exercise hereunder, the Company will pay the cash value of that
fractional share, calculated on the basis of the Exercise Price. (b) Prior to
registration of the shares of Common Stock underlying this Warrant Certificate,
all such certificates shall bear a restrictive legend to the effect that the
Shares represented by such certificate have not been registered under the 1933
Act, and that the Shares may not be sold or transferred in the absence of such
registration or an exemption therefrom, such legend to be substantially in the
form of the bold-face language appearing at the top of Page 1 of this Warrant
Certificate.
8. Disposition of Warrants or Shares. The Holder of this Warrant
Certificate, each transferee hereof and any holder and transferee of any Shares,
by his or its acceptance thereof, agrees that no public distribution of Warrants
or Shares will be made in violation of the provisions of the 1933 Act.
Furthermore, it shall be a condition to the transfer of the Warrants that any
transferee thereof deliver to the Company his or its written agreement to accept
and be bound by all of the terms and conditions contained in this Warrant
Certificate.
9. Merger or Consolidation. The Company will not merge or consolidate
with or into any other corporation, or sell or otherwise transfer its property,
assets and business substantially as an entirety to another corporation, unless
the corporation resulting from such merger or consolidation (if not the
Company), or such transferee corporation, as the case may be, shall expressly
assume, by supplemental agreement reasonably satisfactory in form and substance
to the Holder, the due and punctual performance and observance of each and every
covenant and condition of this Warrant Certificate to be performed and observed
by the Company.
10. Notices. Except as otherwise specified herein to the contrary, all
notices, requests, demands and other communications required or desired to be
given hereunder shall only be effective if given in writing by certified or
registered U.S. mail with return receipt requested and postage prepaid; by
private overnight delivery service (e.g. Federal Express); by facsimile
transmission (if no original documents or instruments must accompany the
notice); or by personal delivery. Any such notice shall be deemed to have been
given (a) on the business day immediately following the mailing thereof, if
mailed by certified or registered U.S. mail as specified above; (b) on the
business day immediately following deposit with a private overnight delivery
service if sent by said service; (c) upon receipt of confirmation of
transmission if sent by facsimile transmission; or (d) upon personal delivery of
the notice. All such notices shall be sent to the following addresses (or to
such other address or addresses as a party may have advised the other in the
manner provided in this Section 9):
If to the Company:
Miravant Medical Technologies
7408 Hollister Avenue
Santa Barbara, CA 93117
Attention: Gary S. Kledzik, Chief Executive Officer
Fax: (805) 685-2959
Tel: (805) 685-9880
If to the Holder:
[HOLDER]
[ADDRESS]
Attention:
Facsimile:
with a copy to:
[HOLDER COUNSEL]
[ADDRESS]
New York, NY 10176
Attention:
Facsimile:
With a copy to:
Shoreline Pacific Institutional Finance
3 Harbor Drive, Suite 211
Sausalito, CA 94965
Attention: General Counsel
Fax: (415) 332-7808
Tel: (415) 332-7800
Notwithstanding the time of effectiveness of notices set forth in this Section,
an Election to Purchase shall not be deemed effectively given until it has been
duly completed and submitted to the Company together with the original Warrant
Certificate to be exercised and payment of the Exercise Price in a manner set
forth in this Section.
11. 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 10 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 the right to
trial by jury under applicable law.
12. Successors and Assigns. This Warrant Certificate shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
13. Headings. The headings of various sections of this Warrant
Certificate have been inserted for reference only and shall not affect the
meaning or construction of any of the provisions hereof.
14. Severability. If any provision of this Warrant Certificate is held
to be unenforceable under applicable law, such provision shall be excluded from
this Warrant Certificate, and the balance hereof shall be interpreted as if such
provision were so excluded.
15. Modification and Waiver. This Warrant Certificate and any provision
hereof may be amended, waived, discharged or terminated only by an instrument in
writing signed by the Company and the Holder.
16. Limitation on Exercise. Notwithstanding anything to the contrary
contained herein, this Warrant Certificate may not be exercised by the Holder to
the extent that, after giving effect to Certificate Shares to be issued pursuant
to an Election to Purchase, the total number of shares of Common Stock deemed
beneficially owned by such Holder (other than by virtue of ownership of this
Warrant Certificate, or ownership of other securities that have actions on the
Holder's rights to convert or exercise similar to the limitations set forth
herein), together with all shares of Common Stock deemed beneficially owned by
the Holder's "affiliates" (as defined in Rule 144 of the Act) that would be
aggregated for purposes of determining whether a group under Section 13(d) of
the Securities Exchange Act of 1934 exists, would exceed 4.9% of the total
issued and outstanding shares of the Common Stock; provided that the Holder may
waive the limitation of this Section 16 (i) upon 61 days prior written notice or
(ii) immediately upon a merger in which the Company does not survive, the sale
of all or substantially all of the Company's assets, the failure of the
Company's current stockholders to any longer hold more than 50% of the Company's
voting securities, or any similar change in control transaction. The delivery of
an Election to Purchase by the Holder shall be deemed a representation by such
Holder that it is in compliance with this paragraph. The term "deemed
beneficially owned" as used in this Warrant Certificate shall exclude shares
that might otherwise be deemed beneficially owned by reason of the exercise of
this Warrant Certificate.
17. Specific Enforcement. The Company and the Holder acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Warrant Certificate were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Warrant Certificate and to enforce
specifically the terms and provisions hereof, this being in addition to any
other remedy to which either of them may be entitled by law or equity.
18. Assignment. This Warrant Certificate may be transferred or
assigned, in whole or in part, at any time and from time to time by the then
Holder by submitting this Warrant to the Company together with a duly executed
Assignment in substantially the form and substance of the Form of Assignment
which accompanies this Warrant Certificate and, upon the Company's receipt
hereof, and in any event, within three (3) business days thereafter, the Company
shall issue a Warrant Certificate to the Holder to evidence that portion of this
Warrant Certificate, if any as shall not have been so transferred or assigned.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed, manually or by facsimile, by one of its officers thereunto
duly authorized.
MIRAVANT MEDICAL TECHNOLOGIES
Date:_________________ By:_________________________________
Gary S. Kledzik
Chief Executive Officer
<PAGE>
Common Stock Purchase Warrant Certificate
ELECTION TO PURCHASE
To Be Executed by the Holder
in Order to Exercise the Common Stock
Purchase Warrant Certificate
The undersigned Holder hereby elects to exercise _______ of the
Warrants represented by the attached Common Stock Purchase Warrant Certificate,
and to purchase the shares of Common Stock issuable upon the exercise of such
Warrants, and requests that certificates for securities be issued in the name
of:
----------------------------------------------------------
(Please type or print name and address)
==========================================================
----------------------------------------------------------
(Social Security or Tax Identification Number)
and delivered to:______________________________________________________________
_____________________________________________________________________________ .
(Please type or print name and address if different from above)
If such number of Warrants being exercised hereby shall not be all the Warrants
evidenced by the attached Common Stock Purchase Warrant Certificate, a new
Common Stock Purchase Warrant Certificate for the balance of such Warrants shall
be registered in the name of, and delivered to, the Holder at the address set
forth below.
[In full payment of the purchase price with respect to the Warrants
exercised and transfer taxes, if any, the undersigned hereby tenders payment of
$__________ by check, money order or wire transfer payable in United States
currency to the order of Miravant Medical Technologies.] or [The undersigned
elects cashless exercise in accordance with Section 1(b) of the Common Stock
Purchase Warrant Certificate.]
HOLDER:
Dated:___________________ By:_____________________________________
Name:
Title:
Address:
<PAGE>
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto
_____________ the right represented by the within Warrant to purchase ______
shares of Common Stock of Miravant Medical Technologies, a Delaware corporation,
to which the within Warrant relates, and appoints ____________________ Attorney
to transfer such right on the books of Miravant Medical Technologies, a Delaware
Corporation, with full power of substitution of premises.
Dated: By:
Name:
Title:
(signature must conform to name of holder
as specified on the fact of the warrant)
Address:
Signed in the presence of :
Miravant Medical Technologies
Common Stock Purchase Warrant Certificate
EXHIBIT C
TO AMENDMENT AGREEMENT
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE "SECURITIES
ACT"). THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION UNDER THE SECURITIES ACT OR UNLESS SUCH OFFER, SALE OR TRANSFER IS
EXEMPT FROM SUCH REGISTRATION.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
Dated: [ISSUANCE DATE]
to Purchase [NO] Shares of Common Stock, par value $.01 per Share, of
Miravant Medical Technologies
Miravant Medical Technologies, a Delaware corporation (the "Company"),
hereby certifies that [HOLDER], its permissible transferees, designees,
successors and assigns (collectively, the "Holder"), for value received, is
entitled to purchase from the Company at any time commencing on [ISSUANCE DATE],
and terminated on December 25, 2001 ("Termination Date") up to [NO SHARES] (#)
shares (each a "Share" and collectively the "Shares") of the Company's common
stock par value $.01 per Share (the "Common Stock"), at an exercise price of
Thirty-Five Dollars ($35.00) per Share (the "Exercise Price"). The number of
Shares purchasable hereunder and the Exercise Price are subject to adjustment as
provided in Section 4 hereof.
1. Exercise of Warrants.
(a) Upon presentation and surrender of this Common Stock
Purchase Warrant Certificate ("Warrant Certificate" or "Certificate"),
accompanied by a completed Election to Purchase in the form attached hereto as
Exhibit A (the "Election to Purchase") duly executed, at the principal office of
the Company currently located at 7408 Hollister Avenue, Santa Barbara, CA 90401,
Attn: Gary S. Kledzik, Chief Executive Officer, (or such other office or agency
of the Company within the United States as the Company may designate to the
Holder) together with a check payable to, or wire transfer to, the Company in
the amount of the Exercise Price multiplied by the number of Shares being
purchased, the Company or the Company's Transfer Agent, as the case may be,
shall within three (3) business days deliver to the Holder hereof certificates
of fully paid and non-assessable Common Stock which in the aggregate represent
the number of Shares being purchased; provided, however, that the Holder may
elect to utilize the cashless exercise provisions set forth below in lieu of
tendering the Exercise Price in cash. The certificates so delivered shall be in
such denominations as may be requested by the Holder and shall be registered in
the name of the Holder or such other name as shall be designated by the Holder.
All or less than all of the Warrants represented by this Certificate may be
exercised and, in case of the exercise of less than all, the Company, upon
surrender hereof, will at the Company's expense deliver to the Holder a new
Warrant Certificate or Certificates of like tenor and dated the date hereof
entitling said holder to purchase the number of Shares represented by this
Certificate which have not been exercised and to receive Registration Rights
with respect to such Shares.
(b) Cashless Exercise. Notwithstanding the foregoing provision
regarding payment of the Exercise Price in cash, the Holder may, unless the
Company has prior to Holder's delivery of an Election to Purchase, notified the
Holder in writing that cashless exercise of the Warrant will not be honored (and
the Company has not withdrawn such notice), elect to receive a reduced number of
Shares in lieu of tendering the Exercise Price in cash. The Company may, at any
time prior to delivery by Holder of a Election to Purchase, by notice in writing
rescind any previously delivered notice requiring cash exercise. In the case of
cashless exercise the number of Shares to be issued to the Holder shall be
computed using the following formula:
X = Y(A-B)
----------
A
where: X = the number of Shares to be issued to the Holder;
Y = the number of Shares to be exercised under this Warrant
Certificate;
A = the Market Value (defined below) of one share of Common Stock; and
B = the Exercise Price.
As used herein, "Market Value" refers to the closing bid price of the Common
Stock (as reported by Bloomberg, L.P.) on the day before the date that Election
to Purchase and this Warrant Certificate are duly surrendered to the Company for
a full or partial exercise hereof. Notwithstanding the foregoing definition, if
the Common Stock is not listed on a national securities exchange or quoted in
the Nasdaq System at the time said Election to Purchase is submitted to the
Company in the foregoing manner, the Market Value of the Common Stock shall be
as determined in good faith by the Board of Directors of the Company, unless the
Company shall become subject to a merger, acquisition, or other consolidation
pursuant to which the Company is not the surviving entity, in which case the
Market Value of the Common Stock shall be deemed to be the value received by the
Company's common stockholders pursuant to such merger, acquisition or other
consolidation.
2. Exchange, Transfer and Replacement. (a) At any time prior to the
exercise hereof, this Certificate may be exchanged upon presentation and
surrender to the Company, alone or with other Certificates of like tenor of
different denominations registered in the name of the same Holder, for another
Certificate or Certificates of like tenor in the name of such Holder exercisable
for the aggregate number of Shares as the Certificate or Certificates
surrendered.
(b) Replacement of Warrant Certificate. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, destruction,
or mutilation of this Warrant Certificate and, in the case of any such loss,
theft, or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company, or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant Certificate, the
Company, at its expense, will execute and deliver in lieu thereof, a new Warrant
Certificate of like tenor.
(c) Cancellation; Payment of Expenses. Upon the surrender of
this Warrant Certificate in connection with any transfer, exchange or
replacement as provided in this Section 2, this Warrant Certificate shall be
promptly canceled by the Company. The Company shall pay all taxes (other than
securities transfer taxes) and all other expenses (other than legal expenses, if
any, incurred by the Holder or transferees) and charges payable in connection
with the preparation, execution and delivery of Warrant Certificates pursuant to
this Section 2.
(d) Warrant Register. The Company shall maintain, at its
principal executive offices (or at the offices of the transfer agent for the
Warrant Certificate or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this Warrant
Certificate (the "Warrant Register"), in which the Company shall record the name
and address of the person in whose name this Warrant Certificate has been
issued, as well as the name and address of each transferee and each prior owner
of this Warrant Certificate.
3. Rights and Obligations of Holders of this Certificate. The Holder of
this Certificate shall not, by virtue hereof, be entitled to any rights of a
stockholder in the Company, either at law or in equity; provided, however, that
in the event any certificate representing shares of Common Stock or other
securities is issued to the holder hereof upon exercise of some or all of the
Warrants, such holder shall, for all purposes, be deemed to have become the
holder of record of such Common Stock on the date on which this Certificate,
together with a duly executed Election to Purchase, was surrendered and payment
of the aggregate Exercise Price was made, irrespective of the date of delivery
of such Common Stock certificate.
4. Adjustments.
(a) Stock Dividends, Reclassifications, Recapitalizations,
Etc. In the event the Company: (i) pays a dividend in Common Stock or makes a
distribution in Common Stock, (ii) subdivides its outstanding Common Stock into
a greater number of shares, (iii) combines its outstanding Common Stock into a
smaller number of shares or (iv) increases or decreases the number of shares of
Common Stock outstanding by reclassification of its Common Stock (including a
recapitalization in connection with a consolidation or merger in which the
Company is the continuing corporation), then (1) the Exercise Price on the
record date of such division or distribution or the effective date of such
action shall be adjusted by multiplying such Exercise Price by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately before such event and the denominator of which is the number of
shares of Common Stock outstanding immediately after such event, and (2) the
number of shares of Common Stock for which this Warrant Certificate may be
exercised immediately before such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the Exercise Price immediately
before such event and the denominator of which is the Exercise Price immediately
after such event.
(b) Cash Dividends and Other Distributions. In the event that
at any time or from time to time the Company shall distribute to all holders of
Common Stock (i) any dividend or other distribution of cash, evidences of its
indebtedness, shares of its capital stock or any other properties or securities
or (ii) any options, warrants or other rights to subscribe for or purchase any
of the foregoing (other than in each case, (w) the issuance of any rights under
a shareholder rights plan, (x) any dividend or distribution described in Section
4(a), (y) any rights, options, warrants or securities described in Section 4(c)
and (z) any cash dividends or other cash distributions from current or retained
earnings), then the number of shares of Common Stock issuable upon the exercise
of each Warrant Certificate shall be increased to a number determined by
multiplying the number of shares of Common Stock issuable upon the exercise of
such Warrant Certificate immediately prior to the record date for any such
dividend or distribution by a fraction, the numerator of which shall be such
Current Market Value (as hereinafter defined) per share of Common Stock on the
record date for such dividend or distribution, and the denominator of which
shall be such Current Market Value per share of Common Stock on the record date
for such dividend or distribution less the sum of (x) the amount of cash, if
any, distributed per share of Common Stock and (y) the fair value (as determined
in good faith by the Board of Directors of the Company, whose determination
shall be evidenced by a board resolution, a copy of which will be sent to the
Holders upon request) of the portion, if any, of the distribution applicable to
one share of Common Stock consisting of evidences of indebtedness, shares of
stock, securities, other property, warrants, options or subscription or purchase
rights; and the Exercise Price shall be adjusted to a number determined by
dividing the Exercise Price immediately prior to such record date by the above
fraction. Such adjustments shall be made whenever any distribution is made and
shall become effective as of the date of distribution, retroactive to the record
date for any such distribution. No adjustment shall be made pursuant to this
Section 4(b) which shall have the effect of decreasing the number of shares of
Common Stock issuable upon exercise of each Warrant Certificate or increasing
the Exercise Price.
(c) Rights Issue. In the event that at any time or from time
to time the Company shall issue rights, options or warrants entitling the
holders thereof to subscribe for shares of Common Stock, or securities
convertible into or exchangeable or exercisable for Common Stock to all holders
of Common Stock (other than in connection with the adoption of a shareholder
rights plan by the Company) without any charge, entitling such holders to
subscribe for or purchase shares of Common Stock at a price per share that as of
the record date for such issuance is less than the then Current Market Value per
share of Common Stock, the number of shares of Common Stock issuable upon the
exercise of each Warrant Certificate shall be increased to a number determined
by multiplying the number of shares of Common Stock theretofore issuable upon
exercise of each Warrant Certificate by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding on the date of issuance of
such rights, options, warrant or securities plus the number of additional shares
of Common Stock offered for subscription or purchase or into or for which such
securities that are issued are convertible, exchangeable or exercisable, and the
denominator of which shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights, option, warrants or securities plus the
total number of shares of Common Stock which the aggregate consideration
expected to be received by the Company (assuming the exercise or conversion of
all such rights, options, warrants or securities) would purchase at the then
Current Market Value per share of Common Stock. In the event of any such
adjustment, the Exercise Price shall be adjusted to a number determined by
dividing the Exercise price immediately prior to such date of issuance by the
aforementioned fraction. Such adjustment shall be immediately after such rights,
options or warrants are issued and shall become effective, retroactive to the
record date for the determination of stockholders entitled to receive such
rights, options, warrants or securities. No adjustment shall be made pursuant to
this Section 4(c) which shall have the effect of decreasing the number of shares
of Common Stock purchasable upon exercise or each Warrant Certificate or of
increasing the Exercise Price.
(d) Combination: Liquidation. (i) Except as provided in
Section 4(d)(ii) below, in the event of a Combination (as defined below), each
Holder shall have the right to receive upon exercise of the Warrant Certificates
the kind and amount of shares of capital stock or other securities or property
which such Holder would have been entitled to receive upon or as a result of
such Combination had such Warrant Certificate been exercised immediately prior
to such event (subject to further adjustment in accordance with the terms
hereof). Unless paragraph (ii) is applicable to a Combination, the Company shall
provide that the surviving or acquiring Person (the "Successor Company") in such
Combination will assume by written instrument the obligations under this Section
4 and the obligations to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the Holder may be
entitled to acquire. The provisions of this Section 4(d)(i) shall similarly
apply to successive Combinations involving any Successor Company. "Combination"
means an event in which the Company consolidates with, mergers with or into, or
sells all or substantially all of its assets to another Person, where "Person"
means any individual, corporation, partnership, joint venture, limited liability
company, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
(ii) In the event of (x) a Combination where consideration to
the holders of Common Stock in exchange for their shares is payable solely in
cash or (y) the dissolution, liquidation or winding-up of the Company, the
Holders shall be entitled to receive, upon surrender of their Warrant
Certificates, distributions on an equal basis with the holders of Common Stock
or other securities issuable upon exercise of the Warrant Certificates, as if
the Warrant Certificates had been exercised immediately prior to such event,
less the Exercise Price. In case of any Combination described in this Section
4(d)(ii), the surviving or acquiring Person and, in the event of any
dissolution, liquidation or winding-up of the Company, the Company, shall
deposit promptly with an agent or trustee for the benefit of the Holders of the
funds, if any, necessary to pay to the Holders the amounts to which they are
entitled as described above. After such funds and the surrendered Warrant
Certificates are received, the Company is required to deliver a check in such
amount as is appropriate (or, in the case or consideration other than cash, such
other consideration as is appropriate) to such Person or Persons as it may be
directed in writing by the Holders surrendering such Warrant Certificates.
(e) Notice of Adjustment. Whenever the Exercise Price or the
number of shares of Common Stock and other property, if any, issuable upon
exercise of the Warrant Certificates is adjusted, as herein provided, the
Company shall deliver to the holders of the Warrant Certificates in accordance
with Section 10 a certificate of the Company's Chief Financial Officer setting
forth, in reasonable detail, the event requiring the adjustment and the method
by which such adjustment was calculated (including a description of the basis on
which (i) the Board of Directors determined the fair value of any evidences of
indebtedness, other securities or property or warrants, options or other
subscription or purchase rights and (ii) the Current Market Value of the common
Stock was determined, if either of such determinations were required), and
specifying the Exercise Price and number of shares of Common Stock issuable upon
exercise of Warrant Certificates after giving effect to such adjustment.
(f) Notice of Certain Transactions. In the event that the
Company shall propose (a) to pay any dividend payable in securities of any class
to the holders of its Common Stock or to make any other non-cash dividend or
distribution to the holders of its Common Stock, (b) to offer the holders of its
Common Stock rights to subscribe for or to purchase any securities convertible
into shares of Common Stock or shares of stock of any class or any other
securities, rights or options, (c) to effect any capital reorganization,
reclassification, consolidation or merger affecting the class of Common Stock,
as a whole, or (d) to effect the voluntary or involuntary dissolution,
liquidation or winding-up of the Company, the Company shall, within the time
limits specified below, send to each Holder a notice of such proposed action or
offer. Such notice shall be mailed to the Holders at their addresses as they
appear in the Warrant Register (as defined in Section 2(d)), which shall specify
the record date for the purposes of such dividend, distribution or rights, or
the date such issuance or event is to take place and the date of participation
therein by the holders of Common Stock, if any such date is to be fixed, and
shall briefly indicate the effect of such action on the Common Stock and on the
number and kind of any other shares of stock and on other property, if any, and
the number of shares of Common Stock and other property, if any, issuable upon
exercise of each Warrant Certificate and the Exercise Price after giving effect
to any adjustment pursuant to Section 4 which will be required as a result of
such action. Such notice shall be given as promptly as possible and (x) in the
case of any action covered by clause (a) or (b) above, at least 10 days prior to
the record date for determining holders of the Common Stock for purposes of such
action or (y) in the case of any other such action, at least 20 days prior to
the date of the taking of such proposed action or the date of participation
therein by the holders of Common Stock, whichever shall be the earlier.
(g) Current Market Value. "Current Market Value" per share of
Common Stock or any other security at any date means (i) if the security is not
registered under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (a) the value of the security, determined in good faith by the Board of
Directors of the Company and certified in a board resolution, based on the most
recently completed arm's-length transaction between the Company and a Person
other than an affiliate of the Company or between any two such Persons and the
closing of which occurs on such date or shall have occurred within the six-month
period preceding such date, or (b) if no such transaction shall have occurred
within the six-month period, the value of the security as determined by an
independent financial expert or (ii) if the security is registered under the
Exchange Act, the average of the daily closing bid prices (or the equivalent in
an over-the-counter market) for each day on which the Common Stock is traded for
any period on the principal securities exchange or other securities market on
which the common Stock is being traded (each, a "Trading Day") during the period
commencing ten (10) Trading Days before such date and ending on the date one day
prior to such date, or if the security has been registered under the Exchange
Act for less than ten (10) consecutive Trading Days before such date, the
average of the daily closing bid prices (or such equivalent) for all of the
Trading Days before such date for which daily closing bid prices are available;
provided, however, that if the closing bid price is not determinable for at
least five (5) Trading Days in such period, the "Current Market Value" of the
security shall be determined as if the security were not registered under the
Exchange Act.
(h) Other Adjustments. If the event of any other transaction
of the type contemplated by this Section 4, but not expressly provided for by
the provisions hereof, the Board of Directors of the Company will make
appropriate adjustment in the Exercise Price so as to equitably protect the
rights of the Holder.
(i) No Impairment of Holder's Rights. The Company will not, by
amendment of its certificate of incorporation or bylaws or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant Certificate, but
will at all times in good faith assist in the carrying out of all such terms and
in the taking of all action as may be necessary or appropriate in order to
protect the rights of the Holder against dilution or other impairment.
5. Company's Representations.
(a) The Company covenants and agrees that all shares of Common
Stock issuable upon exercise of this Warrant Certificate will, upon delivery, be
duly and validly authorized and issued, fully-paid and non-assessable and free
from all taxes, liens, claims and encumbrances.
(b) The Company covenants and agrees that it will at all times
reserve and keep available an authorized number of shares of its Common Stock
and other applicable securities sufficient to permit the exercise in full of all
outstanding options, warrants and rights, including this Warrant Certificate.
(c) The Company shall promptly secure the listing of the
Shares upon each national securities exchange or automated quotation system, if
any, upon which shares of Common Stock are then listed or become listed (subject
to official notice of issuance upon exercise of this Warrant Certificate) and
shall maintain, so long as any other shares of Common Stock shall be so listed,
such listing of all shares of Common Stock from time to time issuable upon the
exercise of this Warrant Certificate; and the Company shall so list on each
national securities exchange or automated quotation system, as the case may be,
and shall maintain such listing of, any other shares of capital stock of the
company issuable upon the exercise of this Warrant Certificate if and so long as
any shares of the same class shall be listed on such national securities
exchange or automated quotation system.
(d) The Company has taken all necessary action and proceedings
as required and permitted by applicable law, rule and regulation, including,
without limitation, the notification of the principal market on which the Common
Stock is traded, for the legal and valid issuance of this Warrant Certificate to
the Holder under this Warrant Certificate.
(e) The Warrant Shares, when issued in accordance with the
terms hereof, will be duly authorized and, when paid for or issued in accordance
with the terms hereof, shall be validly issued, fully paid and non-assessable.
The Company has authorized and reserved for issuance to Warrant Holder the
requisite number of shares of Common Stock to be issued pursuant to this
Warrant.
(f) With a view to making available to Holder the benefits of
Rule 144 promulgated under the Act and any other rule or regulation of the
Securities and Exchange Commission ("SEC") that may at any time permit Holder to
sell securities of the Company to the public without registration, the Company
agrees to use its reasonable best efforts to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and
(iii) furnish to any Holder forthwith upon request a written statement
by the Company that it has complied with the reporting requirements of Rule
144 and of the Act and the Exchange Act, a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested to permit any such
Holder to take advantage of any rule or regulation of the SEC permitting
the selling of any such securities without registration.
6. Registration Rights. The Holder is entitled to the benefit of such
registration rights in respect of the Shares as are set forth in the
Registration Rights Agreement dated as of September 25, 1997, as amended, by and
between the Company and the Holder.
7. Fractional Shares: Legends. (a) In lieu of issuance of a fractional
share upon any exercise hereunder, the Company will pay the cash value of that
fractional share, calculated on the basis of the Exercise Price. (b) Prior to
registration of the shares of Common Stock underlying this Warrant Certificate,
all such certificates shall bear a restrictive legend to the effect that the
Shares represented by such certificate have not been registered under the 1933
Act, and that the Shares may not be sold or transferred in the absence of such
registration or an exemption therefrom, such legend to be substantially in the
form of the bold-face language appearing at the top of Page 1 of this Warrant
Certificate.
8. Disposition of Warrants or Shares. The Holder of this Warrant
Certificate, each transferee hereof and any holder and transferee of any Shares,
by his or its acceptance thereof, agrees that no public distribution of Warrants
or Shares will be made in violation of the provisions of the 1933 Act.
Furthermore, it shall be a condition to the transfer of the Warrants that any
transferee thereof deliver to the Company his or its written agreement to accept
and be bound by all of the terms and conditions contained in this Warrant
Certificate.
9. Merger or Consolidation. The Company will not merge or consolidate
with or into any other corporation, or sell or otherwise transfer its property,
assets and business substantially as an entirety to another corporation, unless
the corporation resulting from such merger or consolidation (if not the
Company), or such transferee corporation, as the case may be, shall expressly
assume, by supplemental agreement reasonably satisfactory in form and substance
to the Holder, the due and punctual performance and observance of each and every
covenant and condition of this Warrant Certificate to be performed and observed
by the Company.
10. Notices. Except as otherwise specified herein to the contrary, all
notices, requests, demands and other communications required or desired to be
given hereunder shall only be effective if given in writing by certified or
registered U.S. mail with return receipt requested and postage prepaid; by
private overnight delivery service (e.g. Federal Express); by facsimile
transmission (if no original documents or instruments must accompany the
notice); or by personal delivery. Any such notice shall be deemed to have been
given (a) on the business day immediately following the mailing thereof, if
mailed by certified or registered U.S. mail as specified above; (b) on the
business day immediately following deposit with a private overnight delivery
service if sent by said service; (c) upon receipt of confirmation of
transmission if sent by facsimile transmission; or (d) upon personal delivery of
the notice. All such notices shall be sent to the following addresses (or to
such other address or addresses as a party may have advised the other in the
manner provided in this Section 9):
If to the Company:
Miravant Medical Technologies
7408 Hollister Avenue
Santa Barbara, CA 93117
Attention: Gary S. Kledzik, Chief Executive Officer
Fax: (805) 685-2959
Tel: (805) 685-9880
If to the Holder:
[HOLDER]
[ADDRESS]
Attention:
Facsimile:
with a copy to:
[COUNSEL]
[ADDRESS]
Attention:
Facsimile:
With a copy to:
Shoreline Pacific Institutional Finance
3 Harbor Drive, Suite 211
Sausalito, CA 94965
Attention: General Counsel
Fax: (415) 332-7808
Tel: (415) 332-7800
Notwithstanding the time of effectiveness of notices set forth in this Section,
an Election to Purchase shall not be deemed effectively given until it has been
duly completed and submitted to the Company together with the original Warrant
Certificate to be exercised and payment of the Exercise Price in a manner set
forth in this Section.
11. 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 10 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 the right to
trial by jury under applicable law.
12. Successors and Assigns. This Warrant Certificate shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
13. Headings. The headings of various sections of this Warrant
Certificate have been inserted for reference only and shall not affect the
meaning or construction of any of the provisions hereof.
14. Severability. If any provision of this Warrant Certificate is held
to be unenforceable under applicable law, such provision shall be excluded from
this Warrant Certificate, and the balance hereof shall be interpreted as if such
provision were so excluded.
15. Modification and Waiver. This Warrant Certificate and any provision
hereof may be amended, waived, discharged or terminated only by an instrument in
writing signed by the Company and the Holder.
16. Limitation on Exercise. Notwithstanding anything to the contrary
contained herein, this Warrant Certificate may not be exercised by the Holder to
the extent that, after giving effect to Certificate Shares to be issued pursuant
to an Election to Purchase, the total number of shares of Common Stock deemed
beneficially owned by such Holder (other than by virtue of ownership of this
Warrant Certificate, or ownership of other securities that have actions on the
Holder's rights to convert or exercise similar to the limitations set forth
herein), together with all shares of Common Stock deemed beneficially owned by
the Holder's "affiliates" (as defined in Rule 144 of the Act) that would be
aggregated for purposes of determining whether a group under Section 13(d) of
the Securities Exchange Act of 1934 exists, would exceed 4.9% of the total
issued and outstanding shares of the Common Stock; provided that the Holder may
waive the limitation of this Section 16 (i) upon 61 days prior written notice or
(ii) immediately upon a merger in which the Company does not survive, the sale
of all or substantially all of the Company's assets, the failure of the
Company's current stockholders to any longer hold more than 50% of the Company's
voting securities, or any similar change in control transaction. The delivery of
an Election to Purchase by the Holder shall be deemed a representation by such
Holder that it is in compliance with this paragraph. The term "deemed
beneficially owned" as used in this Warrant Certificate shall exclude shares
that might otherwise be deemed beneficially owned by reason of the exercise of
this Warrant Certificate.
17. Specific Enforcement. The Company and the Holder acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Warrant Certificate were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Warrant Certificate and to enforce
specifically the terms and provisions hereof, this being in addition to any
other remedy to which either of them may be entitled by law or equity.
18. Assignment. This Warrant Certificate may be transferred or
assigned, in whole or in part, at any time and from time to time by the then
Holder by submitting this Warrant to the Company together with a duly executed
Assignment in substantially the form and substance of the Form of Assignment
which accompanies this Warrant Certificate and, upon the Company's receipt
hereof, and in any event, within three (3) business days thereafter, the Company
shall issue a Warrant Certificate to the Holder to evidence that portion of this
Warrant Certificate, if any as shall not have been so transferred or assigned.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed, manually or by facsimile, by one of its officers thereunto
duly authorized.
MIRAVANT MEDICAL TECHNOLOGIES
Date:_________________ By:_________________________________
Gary S. Kledzik
Chief Executive Officer
<PAGE>
Common Stock Purchase Warrant Certificate
ELECTION TO PURCHASE
To Be Executed by the Holder
in Order to Exercise the Common Stock
Purchase Warrant Certificate
The undersigned Holder hereby elects to exercise _______ of the
Warrants represented by the attached Common Stock Purchase Warrant Certificate,
and to purchase the shares of Common Stock issuable upon the exercise of such
Warrants, and requests that certificates for securities be issued in the name
of:
----------------------------------------------------------
(Please type or print name and address)
==========================================================
----------------------------------------------------------
(Social Security or Tax Identification Number)
and delivered to:______________________________________________________________
_____________________________________________________________________________ .
(Please type or print name and address if different from above)
If such number of Warrants being exercised hereby shall not be all the Warrants
evidenced by the attached Common Stock Purchase Warrant Certificate, a new
Common Stock Purchase Warrant Certificate for the balance of such Warrants shall
be registered in the name of, and delivered to, the Holder at the address set
forth below.
[In full payment of the purchase price with respect to the Warrants
exercised and transfer taxes, if any, the undersigned hereby tenders payment of
$__________ by check, money order or wire transfer payable in United States
currency to the order of Miravant Medical Technologies.] or [The undersigned
elects cashless exercise in accordance with Section 1(b) of the Common Stock
Purchase Warrant Certificate.]
HOLDER:
Dated:___________________ By:_____________________________________
Name:
Title:
Address:
<PAGE>
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto
_____________ the right represented by the within Warrant to purchase ______
shares of Common Stock of Miravant Medical Technologies, a Delaware corporation,
to which the within Warrant relates, and appoints ____________________ Attorney
to transfer such right on the books of Miravant Medical Technologies, a Delaware
Corporation, with full power of substitution of premises.
Dated: By:
Name:
Title:
(signature must conform to name of holder
as specified on the fact Warrant)
Address:
Signed in the presence of :
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT ("Agreement") is entered into as of
June 30, 1998 by and between MIRAVANT MEDICAL TECHNOLOGIES, a Delaware
corporation (the "Company"), with headquarters located at 7408 Hollister Avenue,
Santa Barbara, California 93107 and the persons ("Purchasers") set forth on the
execution pages hereof, with regard to the following:
RECITALS
A. On September 25, 1997, the Purchasers purchased from the Company shares of
common stock of the Company ("Common Shares") and Stock Purchase Warrants
("Warrants") pursuant to a Securities Purchase Agreement ("Purchase Agreement")
entered into as of September 22, 1997. B. As part of the foregoing transaction,
the Company and the Purchasers entered into a Registration Rights Agreement
("Registration Agreement") and Lock-Up Agreements ("Lock-Up Agreements") each
dated as of September 22, 1997. (The Purchase Agreement, Warrants, Registration
Agreement and Lock-Up Agreements are sometimes collectively referred to as the
"Transaction Documents." Terms used in this Agreement and not otherwise defined
herein shall have the meaning provided for such terms in the Transaction
Documents.) C. The parties hereto desire to amend and supplement the Transaction
Documents in the manner hereinafter set forth.
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 the Purchasers
hereby agree as follows: 1. Section 5.3 (Additional Shares or Cash Payment) of
the Purchase Agreement is hereby deleted in its entirety and in place thereof
the following is hereby added:
"5.3 Additional Shares or Cash Payment. If on a Monthly
Anniversary Date (as hereinafter defined) the thirty calendar
day average closing bid price (the "Monthly Anniversary
Price") of the Common Stock (as reported by Bloomberg, L.P.)
for the period ending on the trading day prior to such Monthly
Anniversary Date (the "Monthly Pricing Period") is less than
$50 (the "Closing Price"), then the Company shall, at the
Company's sole option (except as provided below), either or in
combination:
(a) Pay to each Purchaser, within 3 business days after such
Monthly 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 Monthly Anniversary Price; and
S = one-eighth (1/8th) of 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 Initial Monthly Anniversary
Date; or
(a) Issue, within 3 business days after such Monthly Anniversary
Date, to each Purchaser a number of additional shares of
Common Stock equal to (i) the dollar amount calculated
pursuant to Section 5.3(a) with respect to such Purchaser
divided by (ii) the Monthly 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.
The quantity S shall not be reduced by virtue of any Common
Shares released from the Lock-Up Agreement by virtue of
Section 1.5 thereof, but will be reduced if, prior to a
Monthly Anniversary Date (the "Subject Monthly Anniversary
Date"), Common Shares that have been purchased by a Purchaser
have been sold or assigned (other than to an affiliate of such
Purchaser) in accordance with Section 1.2 of the Lock-Up
Agreement during the period from the date following the
preceding Monthly Anniversary Date through the Subject Monthly
Anniversary Date (or, if the Subject Monthly Anniversary Date
is the Initial Monthly Anniversary Date, during Monthly
Pricing Period relating to the Initial Monthly Anniversary
Date), by reducing the quantity S (for purposes of
calculations in respect of the Subject Monthly Anniversary
Date only) by the number of Common Shares so sold (the
"Disposed Shares") as contemplated by this sentence. For
example, if S is 50,000 and between the preceding Monthly
Anniversary Date and the Subject Anniversary Date the
Purchaser Sold 5,000 Common Shares pursuant to Section 1.2 of
the Lock-Up Agreement, then S will be reduced for that Subject
Monthly Anniversary Date only by 5,000 to 45,000, representing
50,000 less 5,000. If the number of Disposed Shares is greater
than the quantity S, then the quantity S shall be reduced to
zero for that Subject Monthly Anniversary Date, and the amount
by which the Disposed Shares exceeds the quantity S shall be
applied to reduce the quantity S for the immediately
succeeding Monthly Anniversary Date only.
The term Monthly Anniversary Date shall mean August 1, 1998
(the "Initial Monthly Anniversary Date"), and each monthly
anniversary thereof ending on the same day of the next
succeeding month, through and including March 1, 1999 (the
"Final Monthly Anniversary Date") (for a total of 8 Monthly
Anniversary Dates in the aggregate).
In the event, as to any Monthly Anniversary Date, the Monthly
Anniversary Price is less than $25, then not less than the
amount determined in accordance with the following formula
shall be paid to each Purchaser in cash: P (cash) = ($25 - A)
x S.
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 applicable Monthly
Anniversary Date notice (in the form of Exhibit A annexed) 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 Purchasers who
continue 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 Purchasers 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."
1. Section 4.12 (Cash Maintenance Requirement) of the Purchase Agreement is
hereby amended by deleting the words "through the first anniversary of the date
of the Closing", and in place thereof inserting the words "through the Final
Monthly Anniversary Date". 2. Each of the Warrants are hereby amended as
follows: (a) The Exercise Price is hereby established to be $35 per Share, in
place of the per Share Exercise Price currently set forth in the Warrants. (b)
The Company shall be entitled to redeem the Warrants (but not the Additional
Warrants, as hereinafter defined) for the price of one cent in the event that
the closing bid price of the Common Stock for the 20 consecutive trading days
immediately preceding a particular date (the "Calculation Date") is greater than
$60 per Share; provided, however, that the Company shall have such right if and
only if at all times during such 20 trading day period the Shares of Common
Stock were listed on NASDAQ National Market, the New York Stock Exchange or the
American Stock Exchange and at all times during such period of time the Shares
issuable upon exercise of the Warrants were registered for resale pursuant to an
effective registration statement, were included in a current and deliverable
prospectus, and were listed for trading on each principal exchange or market on
which the shares of Common Stock of the Company were then traded. If the Company
wishes to redeem Warrants, it shall within three (3) trading days of the
Calculation Date (the "Notice Date") give each Purchaser written irrevocable
notice of its intent to redeem the Warrants or else be prohibited from redeeming
Warrants in connection with such Calculation Date. That irrevocable written
notice shall specify the number of Warrants to be redeemed (i.e., the number of
Warrant Shares that will cease to be issuable pursuant to the Warrants); the
Warrants shall be exercisable through and including the date set for redemption,
which shall be five (5) trading days after the Notice Date. If the Company
chooses to submit a notice to redeem Warrants covering a greater number of
Warrant Shares than the proportionate number of Warrant Shares that have been
removed from the transfer restrictions pursuant to Section 1.5 of the Lock-Up
Agreement, the number of Warrant Shares removed from the transfer restrictions
pursuant to such Section 1.5 will automatically be increased to the higher
number of Warrant Shares specified in such notice. (c) Upon execution of this
Agreement, the Company shall provide to each Purchaser, in exchange for such
Purchaser's existing Warrants, new Warrants of like tenor (in the form of
Exhibit B annexed), containing the changes and additions referred to in this
paragraph.* 3. The Lock-Up Agreement is hereby amended as follows: (a) Section
1.1 (Restriction on Dispositions) is hereby amended by adding, after the words
"except as provided in Section 1.2", the following: "or Section 1.5". (b)
Section 1.2 (Permitted Dispositions) is hereby amended by changing the reference
to "$70.00" to read "$55.00". (c) Section 1.3 (Term) is hereby amended by
deleting clause (a) thereof and replacing said clause with the following: "(a)
the Final Monthly Anniversary Date or". (d) Section 1.4 (Option to Terminate) is
hereby amended by adding a new subsection (g) thereto, as follows:
"(g) The Company shall fail to comply with
its obligations under (i) Section 5.3 of the Purchase
Agreement; or (ii) Section 1.5 of this Agreement."
(a) A new Section 1.5 is hereby added to the Lock-Up
Agreement, as follows: "1.5 Phased Termination of
Restrictions. The restrictions on Dispositions
set forth in this Agreement shall terminate on each
Monthly Anniversary Date with respect to that number
of Common Shares (and a corresponding proportionate
number of Warrant Shares based on the total number of
Warrant Shares issued and issuable) covered by the
payment and/or stock issuance obligations of Section
5.3 of the Purchase Agreement at such Monthly
Anniversary Date. The Company agrees, within three
business days of submission of stock certificates
evidencing such shares, to deliver to the Purchaser
submitting such shares, certificates for shares of
Common Stock free of the Stock Legend. Additionally,
restrictions on Dispositions shall terminate
automatically for the number of Warrant Shares
specified in any notice delivered pursuant to Section
3(b) of the Amendment Agreement (dated as of June 30,
1998 between the parties thereto) which exceed the
number of Warrant Shares otherwise released from such
restrictions under this Section 1.5."
(a) The Company agrees to file, and to cause to become effective by no later
than the Initial Monthly Anniversary Date an amendment to its Form S-3
Registration Statement, including in such Registration Statement, in addition to
the Registrable Securities already covered therein, (i) the shares of Common
Stock issuable pursuant to Section 5.3 of the Purchase Agreement as the same has
been amended hereby, and (ii) other amendments to reflect the changes set forth
in this Agreement. (b) In addition, the Company shall promptly file, and shall
cause to become effective by no later than September 3, 1998, a Registration
Statement on Form S-3 or a post-effective amendment to the Registration
Statement on Form S-3 covering the shares issuable pursuant to the Additional
Warrants (defined below) that may be issued pursuant to Section 6 below. All of
the obligations of the Company set forth in the Registration Agreement shall
apply, mutatis mutandis, to its obligation to register such Additional Warrant
Shares (defined below), and the Registration Agreement is hereby deemed amended
in all respects to include such Additional Warrant Shares as Registrable
Securities thereunder. (c) Elliott Associates, L.P. and Westgate International,
L.P. (collectively, "E/W") on the one hand and Stark International, Shepherd
Investments International and Staro Partners (collectively, "S/S/S") on the
other hand, severally and not jointly, agree to comply with the selling
limitations set forth in Section 6(b) and the Company agrees to issue to each of
E/W and S/S/S, within five (5) business days of the Selling Limitations
Termination Date (as hereinafter defined), additional warrants (in the form of
Exhibit C annexed) to purchase shares of Common Stock of the Company (such
additional warrants being referred to as the "Additional Warrants" and such
issuable shares of Common Stock being referred to as the "Additional Warrant
Shares"), having the following terms: The Exercise Price (subject to adjustment
between the date hereof and the date of issuance of such Additional Warrants in
a manner consistent with the provisions for adjustments of the Exercise Price
set forth in the form of Additional Warrants) shall be $35 per Additional
Warrant Share. The number of Additional Warrant Shares (subject to adjustment
between the date hereof and the date of issuance of the Additional Warrants in a
manner consistent with the adjustment of the Exercise Price during such period)
shall equal one Additional Warrant Share for every two Warrant Shares covered by
either an unexercised Warrant, a Warrant that has been redeemed or a Warrant
that has been exercised after a notice of redemption of Warrants has been
delivered pursuant to Section 3(b) above. The Termination Date of the Additional
Warrants shall be December 25, 2001. The form of the Additional Warrant shall
conform to the form of Warrants currently held by Purchasers, mutatis mutandis,
and shall refer to the fact that the Additional Warrant Shares are entitled to
the benefit of registration rights as set forth herein and in the Registration
Rights Agreement. (d) E/W and S/S/S severally agree to restrict its respective
sales of Common Shares and shares of Common Stock (collectively, "Restricted
Shares"), on any trading day prior to the earlier of (i) the Final Monthly
Anniversary Date or (ii) the occurrence of any of the events set forth in
Section 1.4 of the Lock-Up Agreement giving E/W or S/S/S the right to terminate
such Lock-Up Agreement (the "Selling Limitations Termination Date"), to a number
equal to (as applied separately to each of E/W and S/S/S) the greater of (the
"Selling Limitations"): (i) 10% of that trading day's trading volume (as
reported by Bloomberg, L.P.), (ii) 10% of the average of the three previous
trading days' trading volume (as reported by Bloomberg, L.P.) or (iii) 10,000
shares. For the avoidance of doubt, the failure of S/S/S to satisfy the Selling
Limitations will not impair E/W's rights under Section 6, and vice versa. 2. The
provisions of Section 4.4 and Section 4.14 of the Purchase Agreement are hereby
amended so that such sections continue to apply to the Company through the Final
Monthly Anniversary Date. 3. Effective upon the execution date of this Agreement
and until the Final Monthly Anniversary Date, the Company shall have the right,
but not the obligation, to purchase for cash all or (on a pro-rata basis among
the Purchasers) a part of the Common Shares held by the Purchasers at the
original $50 price thereof, and to terminate any contractual rights, including,
but not limited to, all the rights under this Agreement and under the Purchase
Agreement, that the Purchasers have with respect to the Common Shares
repurchased by the Company. The Company must deliver irrevocable written notice
of its intention to so purchase Common Shares (which notice shall specify the
time and place of such purchase, the number of Common Shares being purchased,
and the pro-rata allocation of the purchase among the Purchasers and shall
certify that the Company has set aside the full cash purchase price for such
Common Shares) 15 business days before, and must consummate its purchase of
those Common Shares no earlier than 12 business days and no later than 2
business days before, the commencement of a particular Monthly Pricing Period if
the Company wishes to purchase Common Shares subject to that Monthly Pricing
Period. The Purchaser must deliver its certificates for Common Shares
repurchased hereunder against delivery of the cash purchase price for such
Common Shares within 3 business days of receiving notice of such repurchase. To
the extent a portion of the Common Shares have been disposed of by the
Purchasers, then Company's rights will apply only to the Common Shares
remaining. Without limiting the other provisions of this Section 8, if the
Company completes the purchase of all but not less than all of the Common Shares
held by the Purchasers at the original $50 price thereof within 60 calendar days
from the date of this Agreement, then the Company will have no further
obligation to issue Additional Warrants, and the Company's obligations with
respect to the Warrants will be unaffected by such repurchase. 4. Section 4.10
of the Purchase Agreement is amended by deleting the second sentence thereof
only, and replacing it with the following sentence:
"Each Purchaser agrees not to, directly or
indirectly, enter into any short sales with respect
to the Common Shares prior to the Selling Limitations
Termination Date, as defined in the Amendment
Agreement by and between the parties hereto dated as
of June 30, 1998."
1. Except as set forth herein, the Transaction Documents shall remain
unmodified, and in full force and effect. 2. The provisions of Article VIII
(Governing Law; Miscellaneous) of the Purchase Agreement shall apply to this
Agreement, mutatis mutandis, as if set forth herein in full.
3.
<PAGE>
1. IN WITNESS WHEREOF, the undersigned Purchasers and the Company have caused
this Agreement to be duly executed as of the date first above written.
2.
MIRAVANT MEDICAL TECHNOLOGIES:
By:/S/
---------------------------------
Name:
Title:
PURCHASERS:
STARK INTERNATIONAL
By:/S/
---------------------------------
Name:
Managing Member, Staro Asset Management, LLC
Investment Manager, Stark International
DATE:
[signatures continued next page]
<PAGE>
SHEPHERD INVESTMENTS INTERNATIONAL
By:/S/
---------------------------------
Name:
Managing Member, Staro Asset Management, LLC
Investment Manager, Shepherd Investments International, Ltd.
DATE:
STARO PARTNERS
By:/S/
---------------------------------
Name:
Managing Member, Staro Asset Management, LLC
Investment Manager, Staro Partners
DATE:
ELLIOTT ASSOCIATES, L.P.
By:/S/
---------------------------------
Paul E. Singer
General Partner
WESTGATE INTERNATIONAL, L.P.
By:/S/
---------------------------------
Paul E. Singer, President
Martley International, Inc.
Attorney-in-Fact, Westgate International, L.P.
<PAGE>
EXHIBIT A
Notice of Common Stock Issuance
For the Monthly Anniversary Date of ________, the Monthly Anniversary Price, as
defined in Section 5.3 of the Amended Purchase Agreement, is __________.
Therefore, C - A ("Deficit"), as defined in such Agreement, equals __________.
For each applicable Common Share, Miravant will pay ___________ dollars of the
Deficit in cash, and _________ dollars of the Deficit (not to exceed $25) in
shares of Common Stock.
- --------
* Note that the existing Warrants are dated September 25 and the other
Transaction Documents are dated September 22. The existing Warrants seem to
refer to the Registration Rights Agreement as being dated September 25; in fact
the Registration Rights Agreement was dated September 22. This should be
corrected in the new Warrants.
