Exhibit 4.2
EXHIBIT B-1
TO
UNSECURED CONVERTIBLE DEBENTURE
AND WARRANT PURCHASE AGREEMENT
DEBENTURE WARRANT
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.
[INSERT SIDE LETTER LEGEND, IF APPLICABLE]
MIRAVANT MEDICAL TECHNOLOGIES
COMMON STOCK PURCHASE WARRANT CERTIFICATE
Dated: August 28, 2003
________________________________________________________ to purchase
____________ Shares of Common Stock, par value $.01 per Share, of MIRAVANT
MEDICAL TECHNOLOGIES.
MIRAVANT MEDICAL TECHNOLOGIES, a Delaware corporation (the "Company"),
hereby certifies that _________________________________________, 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 August 28, 2003 and terminating August 28, 2008 (the "Termination Date") up
to _____________ 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 ONE DOLLAR ($1.00) 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. The Termination Date shall be
extended by one (1) day for each day on which (i) the Company does not have a
number of shares of Common Stock reserved for issuance upon exercise hereof at
least equal to the number of Shares issuable upon exercise hereof [(excluding
any period during which the Holder hereof has waived, pursuant to that certain
Side Letter Agreement dated as of August 28, 2003 by and between the Company and
the initial Holder of this Warrant (the "Side Letter Agreement"), the
requirement that the Company have a sufficient number of shares of Common Stock
reserved for issuance upon exercise hereof)] or (ii) the Shares are not
registered for resale pursuant to the terms of the Registration Rights Agreement
(as defined in Section 6 hereof) when such Shares are required to be so
registered thereunder. This Warrant Certificate is being issued by the Company
pursuant to that certain Unsecured Convertible Debenture and Warrant Purchase
Agreement, dated as of August 28, 2003, by and among the Company and the other
signatories thereto (the "Purchase Agreement"), and is subject to the terms and
provisions thereof.
1. Exercise of Warrants. 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 336 Bollay Drive, Santa Barbara, California
93117, Attn: Chief Financial 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) 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
or (b) if the Holder is effectuating a Cashless Exercise (as defined in Section
9 hereof) pursuant to Section 9 hereof, written notice of an election to effect
such a Cashless Exercise for the number of Shares specified in the Election to
Purchase, the Company or the Company's Transfer Agent, as the case may be, shall
as soon as practicable, but in any event within three (3) business days
thereafter, deliver to the Holder hereof certificates for fully paid and
non-assessable shares of Common Stock which in the aggregate represent the
number of Shares being purchased. 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 shall, upon
surrender hereof, 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.
2. Transfer, Exchange, Redemption and Replacement of Warrant.
(a) Transfer. This Warrant Certificate and the rights granted to the Holder
hereof are transferable, in whole or in part, upon surrender of this Warrant
Certificate, together with a properly executed Form of Assignment in
substantially the form attached as Exhibit B hereto, at the office or agency of
the Company referred to in Section 2(e) below, provided, however, that any
transfer or assignment shall be subject to the condition set forth in Section 8
of this Warrant Certificate and any additional transfer restrictions set forth
in the Purchase Agreement [or the Side Letter Agreement]. Until due presentment
for registration of transfer on the books of the Company, the Company may treat
the registered holder hereof as the owner and Holder hereof for all purposes,
and the Company shall not be affected by any notice to the contrary. Upon the
Company's receipt of a duly executed Form of Assignment, and in any event,
within three (3) business days thereafter, the Company shall issue a Warrant
Certificate to the transferee to evidence that portion of these Warrants that
has been so transferred or assigned, and, if less that all of the Warrants
represented by this Warrant Certificate have been so transferred or assigned,
the Company shall also issue a Warrant Certificate to the Holder to evidence
that portion of these Warrants as shall not have been so transferred or
assigned.
(b) Exchange. 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.
(c) 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.
(d) 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
or other taxes imposed on the Holder based upon a measure of the Holder's
income) 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, delivery and performance of Warrant Certificates
pursuant to this Section 2. The Company shall indemnify and reimburse the Holder
for all losses and damages arising as a result of or related to any breach of
the terms of this Warrant Certificate, including costs and expenses (including
legal fees) incurred by such Holder in connection with the enforcement of its
rights hereunder.
(e) 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, the 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 (including pursuant to a Cashless
Exercise), irrespective of the date of delivery of such Common Stock
certificate.
4. Anti-Dilution Adjustments. The Exercise Price and the number of Shares
issuable hereunder shall be subject to adjustment from time to time as provided
in this Section 4.
(a) Stock Splits, Stock Dividends, Etc. If, at any time and from time to time,
the number of outstanding shares of Common Stock is increased by a stock split,
stock dividend, combination, reclassification or other similar event, the
Exercise Price shall be proportionately reduced, or if the number of outstanding
shares of Common Stock is decreased by a reverse stock split, combination,
reclassification or other similar event, the Exercise Price shall be
proportionately increased. Upon each adjustment of the Exercise Price pursuant
to the provisions of this Section 4(a), the number of Shares issuable upon
exercise of these Warrants at such Exercise Price shall be adjusted by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of Shares issuable upon exercise of these Warrants immediately prior
to such adjustment and dividing the product so obtained by the adjusted Exercise
Price.
(b) Distributions. If, at any time and from time to time, the Company shall
declare or make any distribution of its assets (or rights to acquire its assets)
to holders of Common Stock as a partial liquidating dividend, by way of return
of capital or otherwise (including any dividend or distribution to the Company's
stockholders in cash or shares (or rights to acquire shares) of capital stock of
a subsidiary (i.e., a spin-off)) (a "Distribution"), then the Holder hereof
shall be entitled, upon any exercise of these Warrants after the date of record
for determining stockholders entitled to such Distribution (or if no such record
is taken, the date on which such Distribution is declared or made), to receive
the amount of such assets which would have been payable to the Holder with
respect to the Shares issuable upon such exercise (without giving effect to the
limitations contained in Section 8 hereof) had the Holder been the holder of
such Shares on the record date for the determination of stockholders entitled to
such Distribution (or if no such record is taken, the date on which such
Distribution is declared or made).
(c) Purchase Rights. If, at any time and from time to time, the Company issues
any securities or other instruments which are convertible into or exercisable or
exchangeable for Common Stock ("Convertible Securities") or options, warrants or
other rights to purchase or subscribe for Common Stock or Convertible Securities
("Purchase Rights") pro rata to the record holders of the Common Stock, whether
or not such Convertible Securities or Purchase Rights are immediately
convertible, exercisable or exchangeable, then the Holder hereof shall be
entitled, upon any exercise of these Warrants after the date of record for
determining stockholders entitled to receive such Convertible Securities or
Purchase Rights (or if no such record is taken, the date on which such
Convertible Securities or Purchase Rights are issued), to receive the aggregate
number of Convertible Securities or Purchase Rights which the Holder would have
received with respect to the Shares issuable upon such exercise (without giving
effect to the limitations contained in Section 8 hereof) had the Holder been the
holder of such Shares on the record date for the determination of stockholders
entitled to receive such Convertible Securities or Purchase Rights (or if no
such record is taken, the date on which such Convertible Securities or Purchase
Rights were issued). If the right to exercise or convert any such Convertible
Securities or Purchase Rights would expire in accordance with their terms prior
to the exercise of these Warrants, then the terms of such Convertible Securities
or Purchase Rights shall provide that such exercise or convertibility right
shall remain in effect until thirty (30) days after the date the Holder receives
such Convertible Securities or Purchase Rights pursuant to the exercise hereof.
(d) Corporate Change. If, at any time and from time to time, there shall be (i)
any reclassification or change in the terms of the outstanding shares of Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination),
(ii) any consolidation or merger of the Company with any other entity (other
than a merger in which the Company is the surviving or continuing entity and its
capital stock is unchanged), (iii) any sale or transfer of all or substantially
all of the assets of the Company or (iv) any share exchange or other transaction
pursuant to which all of the outstanding shares of Common Stock are converted
into other securities or property (each of (i) - (iv) above being a "Corporate
Change"), then the Holder hereof shall thereafter have the right to receive upon
exercise, in lieu of the Shares otherwise issuable, such shares of stock,
securities and/or other property as would have been issued or payable in such
Corporate Change with respect to or in exchange for the number of Shares which
would have been issuable upon exercise had such Corporate Change not taken place
(without giving effect to the limitations contained in Section 8 hereof), and in
any such case, appropriate provisions (in form and substance reasonably
satisfactory to the Holder) shall be made with respect to the rights and
interests of the Holder to the end that the economic value of these Warrants is
in no way diminished by such Corporate Change. The Company shall not effect any
Corporate Change unless (A) the Holder has received written notice of such
transaction at least thirty (30) days prior thereto, but in no event later than
five (5) days prior to the record date for the determination of stockholders
entitled to vote with respect thereto, and (B) the resulting successor or
acquiring entity (if not the Company) assumes by written instrument (in form and
substance reasonable satisfactory to the Holder) the obligations of the Company
under this Warrant Certificate.
(e) Other Action Affecting Shares or Exercise Price. If, at any time and from
time to time, the Company takes any action affecting the Common Stock that would
be covered by this Section 4, but for the manner in which such action is taken
or structured, which would in any way diminish the value of these Warrants, then
the Exercise Price and the number of Shares issuable upon exercise hereof shall
be proportionately adjusted in such manner as the Board of Directors of the
Company shall in good faith determine to be equitable under the circumstances.
(f) Notice of Adjustments. Upon the occurrence of each adjustment or
readjustment of the Exercise Price pursuant to this Section 4 amounting to a
more than one percent (1%) change in such Exercise Price, or any change to the
number of Shares or other shares of stock, securities and/or other property
issuable upon exercise hereof, the Company, at its expense, shall promptly
compute such adjustment or readjustment or change and prepare and furnish to the
Holder a certificate setting forth such adjustment or readjustment or change and
showing in detail the facts upon which such adjustment or readjustment or change
is based.
(g) Notice of Certain Transactions. In the event that the Company shall propose
(i) 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, (ii) 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, (iii) to effect any capital reorganization, reclassification,
consolidation or merger affecting the class of Common Stock, as a whole, or (iv)
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
the Holder a notice of such proposed action or offer. Such notice shall be
mailed to the Holder at its address as it appears in the Warrant Register (as
defined in Section 2(e)), 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 (i)
or (ii) above, at least ten (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 twenty (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.
(h) No Impairment of Holder's Rights. The Company shall 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. Certain Agreements of the Company. The Company hereby covenants and agrees as
follows:
(a) Shares to be Fully Paid. All shares of Common Stock issuable upon exercise
of these Warrants will, upon issuance in accordance with the terms of this
Warrant Certificate, be duly and validly authorized and issued, fully paid and
non-assessable and free from all taxes, liens, claims and encumbrances.
(b) Reservation of Shares. [Subject to the terms of the Side Letter Agreement,
the / The] Company shall at all times reserve and keep available for the sole
purpose of issuance upon exercise of these Warrants, an authorized number of
shares of its Common Stock and other applicable securities sufficient to permit
the exercise in full of these Warrants (without giving effect to the limitation
set forth in Section 8 hereof).
(c) Listing. [Subject to the terms of the Side Letter Agreement, the / The]
Company shall promptly secure the listing of the shares of Common Stock issuable
upon exercise of these Warrants upon each national securities exchange or
automated or electronic 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 or electronic 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 these Warrants if and so long as any shares of the
same class shall be listed on such national securities exchange or automated or
electronic quotation system.
(d) Blue Sky Laws. The Company shall, on or before the date of issuance of any
Shares pursuant hereto, take such actions as the Company shall reasonably
determine are necessary to qualify the Shares for, or obtain exemption for the
Shares from, sale to the Holder hereof upon the exercise of these Warrants under
applicable securities or "blue sky" laws of the states of the United States, and
shall provide evidence of any such action so taken to the Holder prior to such
date; provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (i) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 5(d), (ii) subject itself to general taxation in any such jurisdiction
or (iii) file a general consent to service of process in any such jurisdiction.
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 the date hereof by and among the
Company and, among others, the Holder, which was executed in connection with the
Purchase Agreement (the "Registration Rights Agreement").
7. Fractional Shares. No fractional shares of Common Stock shall be issued upon
the exercise of these Warrants. In lieu of issuance of a fractional share upon
any exercise hereunder, the Company shall pay the cash value of that fractional
share, calculated on the basis of the Market Price (as defined in Section 11
below) of a share of Common Stock on the date of exercise.
8. Additional Restrictions on Exercise or Transfer. In no event shall the Holder
hereof have the right to exercise any portion of the Warrants evidenced by this
Warrant Certificate for shares of Common Stock or to dispose of any portion of
the Warrants evidenced by this Warrant Certificate to the extent that such right
to effect such exercise or disposition would result in the holder and its
affiliates together beneficially owning more than 4.95% of the outstanding
shares of Common Stock. For purposes of this Section 8, beneficial ownership
shall be determined in accordance with Section 13(d) of the Securities Exchange
Act of 1934, as amended, and Regulation 13D-G thereunder. The restriction
contained in this Section 8 may not be altered, amended, deleted or changed in
any manner whatsoever unless the holders of a majority of the outstanding shares
of Common Stock and the Holder hereof shall approve, in writing, such
alteration, amendment, deletion or change.
9. Cashless Exercise. Subject to the Company's written approval (if required
pursuant to this Section 9), the Warrants evidenced by this Warrant Certificate
may be exercised by presentation and surrender of this Warrant Certificate to
the Company at its principal executive offices with a written notice of the
Holder's intention to effect a cashless exercise, including a calculation of the
number of shares of Common Stock to be issued upon such exercise in accordance
with the terms hereof (a "Cashless Exercise"). Notwithstanding the foregoing, in
the event that, at the time of exercise, there is an effective registration
statement under the Securities Act covering the resale of all of the shares of
Common Stock then issuable upon exercise in full of this Warrant (which
registration statement is not subject to any stop order or otherwise unavailable
for use by the Holder hereof), the written approval of the Company shall be
required to effect a Cashless Exercise. In the event of a Cashless Exercise, in
lieu of paying the Exercise Price in cash, the holder shall surrender this
Warrant Certificate for that number of shares of Common Stock determined by
multiplying the number of Shares to which it would otherwise be entitled by a
fraction, the numerator of which shall be the difference between the then Market
Price of the Common Stock on the date of immediately preceding the date of
exercise and the Exercise Price, and the denominator of which shall be such
Market Price of the Common Stock.
10. Company Default. If, at any time, the Holder hereof submits this Warrant
Certificate, an Election to Purchase and payment to the Company of the Exercise
Price for each of the Shares specified in the Election to Purchase (including
pursuant to a Cashless Exercise), and the Company fails for any reason (other
than the reasons contemplated by Section 8 hereof) to deliver, on or prior to
the fourth (4th) business day following the date on which the Company is
required to deliver the certificate(s) for the Shares so acquired, the number of
Shares to which the holder is entitled upon such exercise (an "Exercise
Default"), then the Company shall pay to the Holder payments ("Exercise Default
Payments") for an Exercise Default in the amount of (i) (N/365), multiplied by
(ii) the amount by which the Market Price on the date the Election to Purchase
giving rise to the Exercise Default is transmitted in accordance with Section 1
(the "Exercise Default Date") exceeds the Exercise Price in respect of such
Shares, multiplied by (iii) the number of Shares the Company failed to so
deliver in such Exercise Default, multiplied by (d) .24, where N equals the
number of days from the Exercise Default Date to the date that the Company
effects the full exercise of these Warrants which gave rise to the Exercise
Default. The accrued Exercise Default Payment for each calendar month shall be
paid in cash upon demand therefor by the Holder. Nothing herein shall limit the
Holder's right to pursue actual damages for the Company's failure to maintain a
sufficient number of authorized shares of Common Stock as required pursuant to
the terms of Section 5(b) hereof or to otherwise issue shares of Common Stock
upon exercise of these Warrants in accordance with the terms hereof, and the
Holder shall have the right to pursue all remedies available at law or in equity
(including a decree of specific performance and/or injunctive relief).
11. Definition of Market Price. For purposes of this Warrant Certificate,
"Market Price" means, as of any date, the last sales price per share of Common
Stock on the Nasdaq SmallCap Market or other principal trading market where such
security is listed or traded as reported by Bloomberg Financial Markets (or a
comparable reporting service of national reputation selected by the Company,
"Bloomberg"), or if the foregoing does not apply, the last reported sales price
of such security on a national exchange or in the over-the-counter market on the
electronic bulletin board for such security as reported by Bloomberg, or, if no
such price is reported for such security by Bloomberg, the average of the bid
prices of all market makers for such security as reported in the "pink sheets"
by the National Quotation Bureau, Inc., in each case for such date or, if such
date was not a trading day for such security, on the next preceding date which
was a trading day. If the Closing Sales Price cannot be calculated for the
Common Stock as of either of such dates on any of the foregoing bases, the
Market Price of the Common Stock on such date shall be the fair market value as
reasonably determined by an investment banking firm selected by the Company and
reasonably acceptable to the Holder, with the costs of such appraisal to be
borne by the Company. The manner of determining the Market Price of the Common
Stock set forth in the foregoing definition shall apply with respect to any
other security in respect of which a determination as to market value must be
made hereunder.
12. Merger or Consolidation. The Company shall not merge or consolidate with or
into any other entity, or sell or otherwise transfer its property, assets and
business substantially as an entirety to another person or entity, unless the
entity resulting from such merger or consolidation (if not the Company), or such
transferee person or entity, 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.
13. 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 (i) on the fifth
(5th) business day immediately following the mailing thereof, if mailed by
certified or registered U.S. mail as specified above; (ii) on the business day
immediately following deposit with a private overnight delivery service if sent
by said service; (iii) upon receipt of confirmation of transmission if sent by
facsimile transmission; or (iv) 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 13):
(a) If to the Company:
Miravant Medical Technologies
336 Bollay Drive
Santa Barbara, CA 93117
Attention: Gary S. Kledzik, Chief Executive Officer
Facsimile: (805) 685-7981
Telephone: (805) 685-9880
(b) If to the Holder, to the address set forth under the Holder's name on the
signature page to the Purchase Agreement executed by the Holder, or to any other
address specified by the Holder in writing to the Maker.
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 Section 1.
14. Governing Law: Jurisdiction. This Warrant Certificate shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in the State of Delaware. The Company
irrevocably consents 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 Warrant Certificate and
irrevocably agrees that all claims in respect of such suit or proceeding may be
determined in such courts. The Company irrevocably waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding in such forum.
The Company further agrees that service of process upon the Company mailed by
the first class mail in accordance with Section 13 shall be deemed in every
respect effective service of process upon the Company in any suit or proceeding
arising hereunder. Nothing herein shall affect the Holder's right to serve
process in any other manner permitted by law. The Company agrees 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 Company irrevocably waives the right to trial by jury under
applicable law.
15. 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.
16. 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.
17. 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.
18. Modification and Waiver. Subject to the express provisions of Section 8
hereof, 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.
19. Specific Enforcement. The Company acknowledges and agrees 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 Holder 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 it may be entitled
by law or equity.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO WARRANT CERTIFICATE]
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
By:_______________________
Name: Gary S. Kledzik
Title: Chief Executive Officer
Exhibit A
to
Warrant Certificate
ELECTION TO PURCHASE
To Be Executed by the Holder
in Order to Exercise the Warrant Certificate
The undersigned Holder hereby elects to exercise _______ of the Warrants
represented by the attached 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 Warrant Certificate, a new 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, the undersigned hereby:
|_| tenders payment of the Exercise Price in the amount of $__________ by
check, money order or wire transfer payable in United States currency to the
order of Miravant Medical Technologies.
|_| elects to effect a Cashless Exercise (as defined in Section 9 of the
Warrant Certificate) by surrendering the Warrant Certificate for an additional
_________ shares of Common Stock.
HOLDER:
By:_____________________________________
Name:
Title:
Address:
Dated:___________________
Exhibit B
to
Warrant Certificate
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 face of the
Warrant)
Address: _________________________________
Signed in the presence of :
Dated: