As filed with the Securities and Exchange Commission on December 22, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
MIRAVANT MEDICAL TECHNOLOGIES
(Exact name of registrant as specified in its charter)
Delaware 77-0222872
(State or other jurisdiction (I.R.S. Employer Identification No.)
of organization)
336 Bollay Drive
Santa Barbara, California 93117
(Address of Principal Executive Offices) (Zip Code)
-------------------
Miravant Medical Technologies 1996 Stock Compensation Plan
Miravant Medical Technologies 1992 Stock Option Plan
Non-Employee Directors' Stock Option Plan
Employment Agreement Stock Options
(Full title of the plans)
-------------------
Gary S. Kledzik, Ph.D.
Chairman and Chief Executive Officer
Miravant Medical Technologies
336 Bollay Drive
Santa Barbara, California 93117
(805) 685-9880
(Name, address and telephone number of agent for service)
--------------------
Copy to:
ELIZABETH A. KING, ESQ.
Bryan Cave LLP
120 Broadway, Suite 300
Santa Monica, California 90401
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C> <C> <C>
- --------------------------- ---------------------- ---------------------- --------------------- ----------------------
Proposed Maximum Proposed Maximum
Title of Securities to be Amount of Shares to Offering Price per Aggregate Offering Amount of
Registered be Registered Share Price Registration Fee
- --------------------------- ---------------------- ---------------------- --------------------- ----------------------
Common Stock, par value
$.01 per share 3,182,063 (1) $9.875 (2) $31,422,872 (2) $8,295.64
- --------------------------- ---------------------- ---------------------- --------------------- ----------------------
</TABLE>
(1) Includes 2,816,063 shares of Common Stock of Miravant Medical Technologies
(the "Company" or the "Registrant") issuable pursuant to awards granted and
reserved for future awards that may be granted under the Company's 1996
Stock Compensation Plan and 7,500 shares of Common Stock issuable upon
exercise of stock options previously granted under certain employment
agreements. Also includes shares being registered for terminated Plans as
follows, 336,000 shares of Common Stock issuable upon exercise of options
previously granted under the Company's 1992 Stock Option Plan and 22,500
shares of Common Stock issuable upon exercise of options previously granted
under the Company's Non-Employee Directors' Stock Option Plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
amount of the registration fee on the basis of the average of the high and
low reported sale prices of a share of Common Stock of Miravant Medical
Technologies on December 16, 1999 as reported by the Nasdaq Stock Market.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Items 1 and 2 of Part
I of Form S-8 will be sent or given to plan participants as specified in Rule
428(b)(1) and, in accordance with the instructions to Part I, are not filed with
the Securities and Exchange Commission (the "Commission") as part of this
Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the
Commission are hereby incorporated by reference:
a. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
b. The Registrant's Quarterly Report on Form 10-Q for the fiscal quarters
ended March 31, 1999, June 30, 1999 and September 30, 1999.
c. Item 1 of the Registrant's Registration Statement on Form 8-A
(Registration No. 0-25544) filed with the Commission on February 13,
1995 pursuant to Section 12 of the Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part thereof from the date of filing such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of the Company's Common Stock registered
hereunder will be passed upon for the Company by Bryan Cave LLP, Santa Monica,
California.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the "Delaware
Law") permits a corporation to provide in its certificate of incorporation that
directors of the corporation shall not be personally liable to the corporation
or its shareholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its shareholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for payments of unlawful dividends or unlawful stock repurchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit. The Company's Certificate of Incorporation contains
such a provision.
Section 145 of the Delaware Law provides that a corporation may indemnify
directors and officers as well as other employees and individuals against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation - a "derivative action"), if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred in
connection with defense or settlement of such action, and the statute requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. Under Section 145, a
corporation shall indemnify an agent of the corporation for expenses actually
and reasonably incurred if and to the extent such person was successful on the
merits in a proceeding or in defense of any claim, issue or matter therein.
The Registrant is presently subject to Section 2115 of the California
Corporations Code (the "California Code"), according to which Section 317 of the
California Code applies to the indemnification of officers and directors of the
Registrant. Under Section 317 of the California Code, permissible
indemnification by a corporation of its officers and directors is substantially
the same as permissible indemnification under Section 145 of the Delaware Law,
except that (i) permissible indemnification does not cover actions the person
reasonably believed were not opposed to the best interests of the corporation,
as opposed to those the person believed were in fact in the best interests of
the corporation, (ii) the Delaware Law permits advancement of expenses to agents
other than officers and directors only upon approval of the board of directors,
(iii) in a case of stockholder approval of indemnification, the California Code
requires certain minimum votes in favor of such indemnification and excludes the
vote of the potentially indemnified person, and (iv) the California Code only
permits independent counsel to approve indemnification if an independent quorum
of directors is not obtainable, while the Delaware Law permits the directors in
any circumstance to appoint counsel to undertake such determination.
The Registrant in its Bylaws has provided for indemnification of its
officers, directors, employees and other agents substantially identical to that
permitted under the California Code. Section 145 of the Delaware Law and Section
317 of the California Code provide that they are not exclusive of other
indemnification that may be granted by a corporation's charter, bylaws,
disinterested director vote, shareholder vote, agreement or otherwise. The
limitation of liability contained in the Registrant's Certificate of
Incorporation and the indemnification provision included in the Registrant's
Bylaws are consistent with Delaware Law Sections 102(b)(7) and 145. The
Registrant has also entered into separate indemnification agreements with its
directors and officers that could require the Registrant, among other things, to
indemnify them against certain liabilities that may arise by reason of their
status or service as directors and officers and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified, including liabilities that may arise under the Securities Act of
1933. In addition, the Company has purchased directors and officers insurance.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to such provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number
4.1 Miravant Medical Technologies 1992 Stock Option Plan [A] [10.10]
4.2 Miravant Medical Technologies Non-Employee Directors' Stock Option Plan
[A] [10.12]
4.3 Amendment No.1 to Miravant Medical Technologies Non-Employee Directors'
Stock Option Plan [B] [10.6]
4.4 Form of Miravant Medical Technologies Employment Agreement Stock Option
[A] [10.6]
4.5 Miravant Medical Technologies 1996 Stock Compensation Plan [C]
5.1 Opinion of Bryan Cave LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
[A] Incorporated by reference to the exhibit referred to in brackets contained
in the Registrant's Registration Statement on Form S-1 (File No. 33-87138).
[B] Incorporated by reference to the exhibit referred to in brackets contained
in the Registrant's Form 10-Q for the quarter ended September 30, 1995
(File No. 0-25544).
[C] Incorporated by reference to Exhibit A to the Registrant's definitive Proxy
Statement dated April 25, 1997 for the Miravant Medical Technologies 1997
Annual Meeting of Shareholders.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Barbara, State of California, on December 20,
1999.
Miravant Medical Technologies
By: /S/ Gary S. Kledzik
-------------------------
Gary S. Kledzik, Ph.D., Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Gary S. Kledzik, Ph.D. and John M.
Philpott, or either of them, his attorneys-in-fact and agents, each with full
power of substitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do so and perform
each and every act and thing requisite and necessary to be done in connection
with this Registration Statement, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that either of
said attorneys-in-fact and agents, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Signature Title Date
/S/ Gary S. Kledzik Chairman of the Board, Director, and
---------------- Chief Executive Officer
Gary S. Kledzik December 20, 1999
/S/ David E. Mai Director and President December 20, 1999
----------------
David E. Mai
/S/John M. Philpott Chief Financial Officer December 20, 1999
-------------------
John M. Philpott
/S/ Larry Barels Director December 20, 1999
-----------------------
Larry Barels
/S/ William P. Foley II Director December 20, 1999
-----------------------
William P. Foley II
/S/ Charles T. Foscue Director December 20, 1999
---------------------
Charles T. Foscue
/S/ Jonah Shacknai Director December 20, 1999
-----------------------
Jonah Shacknai
</TABLE>
INDEX TO EXHIBITS
<TABLE>
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<S> <C> <C> <C>
Sequentially
Exhibit Numbered
Number Exhibit Page
4.1 Miravant Medical Technologies 1992 Stock Option Plan
[A] [10.10]
4.2 Miravant Medical Technologies Non-Employee Directors' Stock
Option Plan [A] [10.12]
4.3 Amendment No. 1 to Miravant Medical Technologies
Non-Employee Directors' Stock Option Plan [B] [10.6]
4.4 From of Miravant Medical Technologies Employment Agreement
Stock Option [A] [10.6]
4.5 Miravant Medical Technologies 1996 Stock Compensation Plan
[C]
5.1 Opinion of Bryan Cave LLP
23.1 Consent Of Ernst & Young LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
[A] Incorporated by reference to the exhibit referred to in
brackets contained in the Registrant's Registration
Statement on Form S-1 (File No. 33-87138)
[B] Incorporated by reference to the exhibit
referred to in brackets contained in the
Registrant's Form 10-Q for the quarter ended
September 30, 1995 (File No. 0-25544).
[C] Incorporated by reference to the Registrant's
definitive Proxy Statement dated April 25, 1997
for the Miravant Medical Technologies 1997
Annual Meeting of Shareholders
</TABLE>
EXHIBIT 5.1
OPINION OF BRYAN CAVE LLP
December 20, 1999
Miravant Medical Technologies
336 Bollay Drive
Santa Barbara, CA 93117
Re: Miravant Medical Technologies - Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Miravant Medical Technologies, a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, to be filed with the Securities and Exchange
Commission (the "Commission") in connection with the registration of an
aggregate of 3,182,063 shares of the Company's Common Stock, par value $.01 per
share (collectively, the "Shares"), issuable in connection with the Company's
1996 Stock Compensation Plan, the Non-Employee Directors' Stock Option Plan, the
1992 Stock Option Plan and stock options issued under certain Company Employment
Agreements (the "Plans").
In connection with the preparation of the Registration Statement and the
proposed issuance and sale of the Shares in accordance with the Plans and the
Section 10(a) prospectuses to be delivered to participants in the Plans, we have
made certain legal and factual examinations and inquiries and examined, among
other things, such documents, records, instruments, agreements, certificates and
matters as we have considered appropriate and necessary for the rendering of
this opinion. We have assumed for the purpose of this opinion the authenticity
of all documents submitted to us as originals and the conformity with the
originals of all documents submitted to us as copies, and the genuineness of the
signatures thereon. As to various questions of fact material to this opinion, we
have, when relevant facts were not independently established, relied, to the
extent deemed proper by us, upon certificates and statements of officers and
representatives of the Company.
Based on the foregoing and in reliance thereon, it is our opinion that the
Shares have been duly authorized, and, when issued and sold in accordance with
the Plans and the respective prospectuses to be delivered to participants in the
Plans, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the
Registration Statement and further consent to the reference to this firm in the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Commission thereunder.
Our opinion herein is limited to the General Corporation Law of the State
of Delaware, and we assume no responsibility as to the applicability thereto, or
the effect thereon, of the laws of any other jurisdiction.
Very truly yours,
/S/ BRYAN CAVE LLP
------------------
BRYAN CAVE LLP
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8) relating to the Miravant Medical Technologies 1996 Stock Compensation Plan,
the Miravant Medical Technologies 1992 Stock Option Plan, the Miravant Medical
Technologies Non-Employee Directors' Stock Option Plan and the Miravant Medical
Technologies Employment Agreement Stock Options of our report dated March 4,
1999 with respect to the consolidated financial statements of Miravant Medical
Technologies included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
---------------------
ERNST & YOUNG LLP
Woodland Hills, California
December 20, 1999
