SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION
14(a) OF THE SECURITIES EXCHANGE
ACT OF 1934 (AMENDMENT NO. __)
Filed by the Registrant /X/
Filed by a party other than the Registrant / /
Check the appropriate box:
/X/ Preliminary Proxy Statement Confidential, for Use of the
Definitive Proxy Statement Commission Only (as permitted by
Definitive Additional Materials Rule 14a-6(e)(2))
Soliciting Material Pursuant to
Rule 14a-11(c) or Rule 14a-12
MIRAVANT MEDICAL TECHNOLOGIES
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(Name of Registrant as Specified in Its Charter)
Payment of filing fee (Check the appropriate box):
/X/ No fee required.
Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transactions
applies:
(2) Aggregate number of securities to which transactions
applies:
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the
amount on which the filing fee is calculated and state how
it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
Fee paid previously with preliminary materials.
Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount previously paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing party: (4) Date filed:
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Miravant Medical Technologies
336 Bollay Drive
Santa Barbara, California 93117
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NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held on February [ ], 2004
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Notice is hereby given that a Special Meeting of Stockholders of Miravant
Medical Technologies (the "Company") will be held on [ ], February [ ], 2004, at
10:00 a.m., at Miravant Medical Technologies' corporate offices, 336 Bollay
Drive, Santa Barbara, California, 93117, (805) 685-9880, for the following
purpose:
To approve an amendment and restatement of the Company's existing
certificate of incorporation to increase the authorized number of
shares of Common Stock from 50,000,000 to 75,000,000 and increase the
authorized number of shares of Preferred Stock from 20,000,000 to
30,000,000.
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These items are more fully described in the following pages. The Board of
Directors has fixed the close of business on December 29, 2003, as the record
date for the determination of stockholders entitled to receive notice of and to
vote at the meeting. Stockholders are reminded that shares cannot be voted
unless the stockholder is present at the meeting or the signed proxy is returned
or other arrangements are made to have the shares represented at the meeting.
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Whether or not you expect to attend the meeting, please complete, date and
sign the enclosed proxy and mail it promptly in the enclosed envelope.
By Order of the Board of Directors
/s/ Joseph E. Nida
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Joseph E. Nida
Secretary
Santa Barbara, California
February [ ], 2003
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PLEASE SIGN AND RETURN THE ENCLOSED PROXY
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TABLE OF CONTENTS
Page
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Proxy Statement 3
Voting and Solicitation of Proxies 4
Proposal: Amendment and Restatement of the Company's existing
Certificate of Incorporation 5
Security Ownership of Certain Beneficial Owners and Management 7
Stockholder Proposals for the 2004 Proxy Statement 9
Where You Can Find More Information 9
Annex A
Amended and Restated Certificate of Incorporation A-1
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Miravant Medical Technologies
336 Bollay Drive
Santa Barbara, California 93117
PROXY STATEMENT
FOR
SPECIAL MEETING OF STOCKOLDERS
This Proxy Statement and the accompanying proxy card are first being mailed
to stockholders on or about February [ ], 2004 in connection with the
solicitation of proxies on behalf of the Board of Directors (the "Board") of
Miravant Medical Technologies (collectively with its subsidiaries, the
"Company") for a Special Meeting of Stockholders, to be held on [ ], February
[ ], 2004, at 10:00 a.m. local time, at Miravant Medical Technologies' corporate
offices, 336 Bollay Drive, Santa Barbara, California, or at any adjournment
thereof. Proxies are solicited to give all stockholders of record at the close
of business on December 29, 2003 an opportunity to vote on matters to be
presented at the Special Meeting. Shares can be voted at the meeting only if the
stockholder is present or represented by proxy.
At the Special Meeting, stockholders will be asked to consider and vote
upon the following proposal:
Approval of an amendment and restatement of the Company's existing
certificate of incorporation to increase the authorized number of
shares of Common Stock from 50,000,000 to 75,000,000 and increase the
authorized number of shares of Preferred Stock from 20,000,000 to
30,000,000.
Any stockholder giving a proxy may revoke it at any time prior to its
exercise at the Special Meeting by giving notice of such revocation either
personally or in writing to the Secretary of the Company at the Company's
executive offices, by subsequently executing and delivering a later-dated proxy,
or by voting in person at the Special Meeting.
A list of the stockholders of record as of the record date will be
available for examination during ordinary business hours at least ten days prior
to the Special Meeting by any stockholder, for any purpose germane to the
Special Meeting at the Company's offices at 336 Bollay Drive, Santa Barbara,
California 93117 (telephone (805) 685-9880), Attention: Shadean Runyen or John
Philpott.
The Board of Directors of the Company believes that approval of the
proposal is in the best interests of the Company and its stockholders and
unanimously recommends that the stockholders vote FOR the proposal.
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VOTING AND SOLICITATION OF PROXIES
Only holders of record at the close of business on December 29, 2003, or
the record date, of the Company's Common Stock, $.01 par value, which is
referred to in this proxy statement as the Common Stock, will be entitled to
vote at the Special Meeting. On the record date, there were 25,564,904 shares of
Common Stock outstanding and no shares of preferred stock were outstanding. The
holders of a majority of the outstanding shares of Common Stock as of the record
date present in person or by proxy and entitled to vote shall constitute a
quorum for the transaction of business at the Special Meeting or any
adjournments thereof. Under the General Corporation Law of the State of
Delaware, an abstaining vote and a broker "non-vote" are counted as present and
entitled to vote and are, therefore, included for purposes of determining
whether a quorum of shares is present at a meeting. A broker "non-vote" occurs
when a nominee holding shares for a beneficial owner does not vote on a
particular proposal because the nominee does not have discretionary voting power
with respect to that item and has not received instructions from the beneficial
owner. On all matters to come before the Special Meeting, each holder of Common
Stock will be entitled to one vote for each share owned. Stockholders do not
have the right to cumulate votes.
Please specify your choice on the proposal by marking the appropriate box
on the enclosed proxy card and signing it. Shares represented by duly executed
and unrevoked proxies in the enclosed form received prior to the Special Meeting
will be voted at the Special Meeting in accordance with the specifications made
therein by the stockholders, unless authority to do so is withheld. If no
specification is made, shares represented by duly executed and unrevoked proxies
will be voted FOR the proposal, and with respect to any other matter that may
properly come before the meeting, in the discretion of the proxy holders.
This proxy solicitation is being made by the Company. The Company intends
to solicit proxies by use of the mail. In addition, solicitation of proxies may
be made by personal and telephonic meetings with stockholders by directors,
officers and regular employees of the Company. The cost of preparing, assembling
and mailing the proxy materials will be borne by the Company.
Vote Required
Approval of the proposed amendment and restatement of the Company's
certificate of incorporation pursuant to the proposal requires the affirmative
vote of at least a majority of the outstanding shares of the Company's Common
Stock on the record date. Abstentions and broker non-votes will have the same
legal effect as a vote against the proposal.
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If you plan to attend the meeting, please mark the appropriate box on the proxy
card. Stockholders whose shares are held of record by brokers or other
institutions, will be admitted only upon presentation of proper identification
and proof of ownership (e.g., a brokers' statement) at the door.
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PROPOSAL
APPROVAL OF AN AMENDMENT AND RESTATEMENT OF THE COMPANY'S
EXISTING CERTIFICATE OF INCORPORATION
General
The Company's board of directors unanimously adopted resolutions declaring
the advisability of, approving and recommending to the Company's stockholders
for their approval, a proposed amendment and restatement of the Company's
certificate of incorporation to increase the authorized number of shares of
Common Stock from 50,000,000 to 75,000,000 and increase the authorized number of
shares of Preferred Stock from 20,000,000 to 30,000,000. The amendment will have
the effect of increasing the number of shares of Common Stock and Preferred
Stock that are available for issuance by the Company. The rights and privileges
of holders of shares of Common Stock will remain the same after the amendment.
The rights and privileges of the Series B Junior Participating Stock will also
remain unchanged. The Company has not designated any series of Preferred Stock
other than the Series B Junior Participating Stock as of the date of this proxy
statement. A copy of the proposed Amended and Restated Certificate of
Incorporation is included as Annex A to this proxy statement.
Presently, the Company's certificate of incorporation authorizes the
issuance of up to 50,000,000 shares of Common Stock, of which 25,564,904 shares
were outstanding on the record date, and 20,000,000 shares of Preferred Stock,
none of which were outstanding on the record date, and 50,000 of which were
designated as Series B Junior Participating Stock as of the record date.
After giving effect to the amendment, the number of shares outstanding on
the record date, assuming that no outstanding options or warrants are exercised,
would be approximately 49,435,096 shares of authorized but unissued Common Stock
and 30,000,000 shares of authorized but unissued Preferred Stock. Of these
approximately 49,435,096 authorized but unissued shares of Common Stock,
approximately 12,082,850 shares would be reserved for issuance pursuant to
exercise of outstanding warrants, approximately 4,211,223 shares would be
reserved for issuance pursuant to the exercise of outstanding stock options, and
approximately 12,700,000 shares would be reserved for issuance pursuant to
conversion of outstanding notes. Of approximately 30,000,000 authorized but
unissued shares of preferred stock, 75,000 shares would be designated as Series
B Junior Participating Stock and reserved for issuance in connection with the
Company's existing preferred stock rights agreement. Currently 50,000 shares are
designated as Series B Junior Participating Stock, but subject to effectiveness
of the increase in the number of authorized shares of Common Stock, the
Company's board of directors has approved a corresponding increase in the number
of shares of authorized Series B Junior Participating Stock.
As a result, if the amendment is approved, the Company will have
approximately 49,435,096 authorized but unissued shares of Common Stock
available for issuance at the discretion of the board of directors, which
represents an increase of approximately two times the number of authorized but
unissued shares as of December 29, 2003. In addition, the Company will have
approximately 30,000,000 authorized but unissued shares of Preferred Stock
available for issuance at the discretion of the board of directors, which
represents an increase of approximately 1.5 times the number of authorized but
unissued shares as of December 29, 2003. Although the Company is not currently
obligated, nor does it have any plans, proposals or arrangements, to issue any
portion of these additional shares, the Company may determine to issue some of
these shares in connection with its currently ongoing efforts to obtain
additional equity or other financing. In addition, the Company may use any of
these additional shares for issuance in the future based on its future capital
and other needs as determined in the discretion of the Company's board of
directors. Many of these issuances might not require prior stockholder approval,
and any such issuances would dilute the equity ownership of the Company's
then-outstanding common stockholders.
As of December 29, 2003, there were 282 holders of record of Common Stock.
The Company believes the total number of beneficial holders of its Common Stock
to be approximately 5,500, based on information received from the transfer agent
and those brokerage firms who hold Common Stock in custodial or "street" name.
Vote Required for Approval
All shares of Common Stock outstanding on the record date will be entitled
to vote on this proposal. The approval of the amendment and restatement of the
Company's certificate of incorporation requires the affirmative vote of holders
of at least a majority our outstanding shares of Common Stock as of the record
date. Since a majority of all outstanding shares is required, any shares that
are not voted, including shares represented by a proxy that is marked "abstain"
and broker non-votes, will effectively count against this proposal. In the
absence of indications to the contrary, the proxy holders will vote their
proxies for the approval of the amendment and restatement of the Company's
certificate of incorporation.
In addition, the Company has obtained the consent to the amendment and
restatement of its certificate of incorporation from the required number of
holders of Unsecured Convertible Subordinated Debentures issued on August 28,
2003 as provided for under such debentures.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR THE APPROVAL OF
THE AMENDMENT AND RESTATEMENT OF OUR CERTIFICATE OF INCORPORATION.
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the beneficial
ownership of the Common Stock as of December 29, 2003 by (i) each person known
by the Company to own beneficially five percent or more of the outstanding
shares of its Common Stock, (ii) each of the Company's directors and named
executive officers and (iii) all directors and named executive officers of the
Company as a group.
Number of Shares Percentage
Beneficially of Outstanding
Name Owned (1)(2) Stock
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Gary S. Kledzik, Ph.D.(3).................................... 2,263,872 8.58%
St. Cloud Investment, Ltd. (4)............................... 1,720,303 6.67%
David E. Mai (3)............................................. 799,213 3.07%
John M. Philpott (3)......................................... 328,980 1.29%
Charles T. Foscue (5)........................................ 196,927 *
Barry Johnson................................................ 10,000 *
All directors and executive officers as a group (5 persons) . 3,598,992 13.22%
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* Less than one percent.
(1) Each person has sole voting and investment power over the Common Stock
shown as beneficially owned, subject to community property laws where
applicable and the information contained in the footnotes below.
(2) Includes the following shares of Common Stock issuable upon exercise of
options and/or warrants exercisable within 60 days of December 29, 2003:
Dr. Kledzik--833,477 shares; St. Cloud Investments, Ltd.--233,532; Mr.
Mai--472,338 shares; Mr. Philpott--162,730 shares; Mr. Foscue--178,750
shares; Mr. Johnson--10,000; and directors and executive officers as a
group--1,657,295 shares.
(3) Included in the shares beneficially owned by each named executive officer
are restricted shares approved in November 2002 by the Compensation
Committee of the Board of Directors as part of a Stock Option Exchange
Program. This program allowed these executives to exchange stock options
that had an exercise price of greater than $5.00 for restricted Common
Stock at a two for one ratio. The restricted Common Stock were fully vested
on December 31, 2003. Dr. Kledzik exchanged 1,128,750 stock options for
564,375 shares of restricted Common Stock, Mr. Mai exchanged 578,750 stock
options for 289,375 shares of restricted Common Stock, Mr. Philpott
exchanged 317,500 stock options for 158,750 shares of restricted Common
Stock.
(4) According to the Schedule 13D filed with the SEC on March 10, 1999, St.
Cloud Investments, Ltd. is a corporation organized under the laws of the
British Virgin Islands and its principal business address is c/o Robert
Tucker, 61 Purchase Street, Suite 2, Rye, New York 10580.
(5) Excludes 12,069 shares of Common Stock to which Mr. Foscue disclaims
beneficial ownership. 11,521 of these shares are held by HAI Financial,
Inc., of which Mr. Foscue is the Chairman, President and Chief Executive
Officer and the remaining 548 shares are held in a pension plan for the
benefit of Mr. Foscue.
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STOCKHOLDER PROPOSALS FOR THE 2004 PROXY STATEMENT
Any stockholder satisfying the SEC requirements and wishing to submit a
proposal to be included in the Proxy Statement for the Company's 2004 Annual
Meeting of Stockholders should submit the proposal in writing to Secretary,
Miravant Medical Technologies, 336 Bollay Drive, Santa Barbara, California 93117
no later than January 30, 2004, in order for such proposal to be considered for
inclusion in the Proxy Statement and all other conditions for such inclusion
must be satisfied. Additionally, management proxy holders for the Company's 2004
Annual Meeting will have discretionary authority to vote on any stockholder
proposal that is presented at such Annual Meeting, but that is not included in
the Company's Proxy Statement, unless notice of such proposal is received by the
Secretary on or before March 29, 2004.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements and
other information filed by us at the SEC public reference rooms at 450 Fifth
Street, N.W., Washington D.C. 20549 or at the SEC's other public reference rooms
in New York, New York and Chicago, Illinois. Please call the SEC at (800)
SEC-0330 for further information on public reference rooms. Our filings with the
SEC are also available to the public from commercial document-retrieval services
and the website maintained by the SEC at www.sec.gov. In addition, you can view
certain of these documents at our website at www.miravant.com. Copies of this
Proxy Statement and other documents referred to herein may be obtained for free
from the Company. Requests for documents should be directed to: Investor
Relations, Miravant Medical Technologies, 336 Bollay Drive, Santa Barbara,
California 93117, telephone (805) 685-9880.
You should rely on the information contained in this Proxy Statement to
vote on the proposal. The Company has not authorized anyone to provide you with
information that is different from what is contained in this Proxy Statement.
You should not assume that the information contained in the Proxy Statement is
accurate as of any date other than the date hereof, and the mailing of this
Proxy Statement to our stockholders shall not create any implication to the
contrary.
WHETHER OR NOT YOU EXPECT TO ATTEND THE MEETING,
PLEASE SIGN THE PROXY AND RETURN IT IN
THE ENCLOSED STAMPED ENVELOPE
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Santa Barbara, California
February [ ], 2003
By Order of the Board of Directors
/s/ Joseph E. Nida
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Joseph E. Nida
Secretary
A-1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
MYRAVANT MEDICAL TECHNOLOGIES
It is hereby certified that:
1. (a) The present name of the corporation (hereinafter called the
"Corporation") is: MIRAVANT MEDICAL TECHNOLOGIES. (b) The name under which the
Corporation was originally incorporated is P.D.T., Inc., and the date of filing
the original certificate of incorporation of the Corporation with the Secretary
of State of the State of Delaware is June 16, 1989.
2. Pursuant to Section 242 and Section 245 of the General Corporation Law
of the State of Delaware, Miravant Medical Technologies has adopted this Amended
and Restated Certificate of Incorporation, restating, integrating and further
amending its Restated Certificate of Incorporation filed with the Secretary of
State of the State of Delaware on September 12, 1997 and a Certificate of
Designation of Series B Junior Participating Preferred Stock of Miravant Medical
Technologies filed with the Secretary of State of the State of Delaware on July
17, 2000.
3. The Certificate of Incorporation of the Corporation, as amended and
restated herein, shall at the effective time of this Amended and Restated
Certificate of Incorporation, read as follows:
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MIRAVANT MEDICAL TECHNOLOGIES
FIRST. The name of the Corporation is: Miravant Medical Technologies
SECOND. Its registered office in the State of Delaware is to be located at
32 Loockerman Square, Suite L-100, Dover, County of Kent, Delaware 19904. The
Registered Agent in charge thereof is The Prentice-Hall Corporation System, Inc.
THIRD. The nature of the business and, the objects and purposes proposed to
be transacted, promoted and carried on, are any or all things herein mentioned,
as fully and to the same extent as natural persons might or could do, and in any
part of the world, viz:
The purpose of the Corporation is to engage in any lawful act or activity
for which Corporations may be organized under the General Corporate Law of
Delaware.
FOURTH. The Corporation shall be authorized to issue two (2) classes of
shares, one designated Common Stock, of which the Corporation is authorized to
issue SEVENTY FIVE MILLION (75,000,000) shares, and one designated Preferred
Stock, of which the Corporation is authorized to issue THIRTY MILLION
(30,000,000) shares. Each class of shares shall have a par value of one cent
($0.01) per share.
The Preferred Stock may be issued in one or more series. The Board of
Directors is authorized (i) to determine or alter the rights, preferences,
privileges, and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock, (ii) to fix the number of shares comprising any such
series and the designation thereof, within the limits and restrictions stated in
any resolution or resolutions of the Board of Directors originally fixing the
number of shares constituting any series, and (iii) to increase or decrease (but
not below the number of shares of such series then outstanding) the number of
shares of any such series subsequent to the issue of shares of that series.
A series of Preferred Stock has been created and designated "Series B
Junior Participating Preferred Stock" pursuant to Section 151(g) of the General
Corporation Law of the State of Delaware. The designations, powers, preferences
and relative and other special rights and the qualifications, limitations and
restrictions of such Series B Junior Participating Preferred Stock are as
follows:
1. Designation and Amount. The shares of such series shall be designated as
"Series B Junior Participating Preferred Stock." The Series B Junior
Participating Preferred Stock shall have a par value of $0.01 per share, and the
number of shares constituting such series shall be 75,000.
2. Proportional Adjustment. In the event that the Corporation shall at any
time after the issuance of any share or shares of Series B Junior Participating
Preferred Stock (i) declare any dividend on Common Stock of the Corporation
("Common Stock") payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the Corporation shall
simultaneously effect a proportional adjustment to the number of outstanding
shares of Series B Junior Participating Preferred Stock.
3. Dividends and Distributions.
(a) Subject to the prior and superior right of the holders of any shares of
any series of Preferred Stock ranking prior and superior to the shares of Series
B Junior Participating Preferred Stock with respect to dividends, the holders of
shares of Series B Junior Participating Preferred Stock shall be entitled to
receive when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the last day
of February, May, August and November in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series B Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to 1,000 times the
aggregate per share amount of all cash dividends, and 1,000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series B Junior Participating Preferred Stock.
(b) The Corporation shall declare a dividend or distribution on the Series
B Junior Participating Preferred Stock as provided in paragraph (a) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock).
(c) Dividends shall begin to accrue on outstanding shares of Series B
Junior Participating Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series B Junior Participating
Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Series B Junior
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series B Junior Participating Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series B Junior Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
4. Voting Rights. The holders of shares of Series B Junior Participating
Preferred Stock shall have the following voting rights:
(a) Each share of Series B Junior Participating Preferred Stock shall
entitle the holder thereof to 1,000 votes on all matters submitted to a vote of
the stockholders of the Corporation.
(b) Except as otherwise provided herein or by law, the holders of shares of
Series B Junior Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.
(c) Except as required by law, the holders of Series B Junior Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent that they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
5. Certain Restrictions.
(a) The Corporation shall not declare any dividend on, make any
distribution on, or redeem or purchase or otherwise acquire for consideration
any shares of Common Stock after the first issuance of a share or fraction of a
share of Series B Junior Participating Preferred Stock unless concurrently
therewith it shall declare a dividend on the Series B Junior Participating
Preferred Stock as required by Section 3 hereof. (b) Whenever quarterly
dividends or other dividends or distributions payable on the Series B Junior
Participating Preferred Stock as provided in Section 3 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series B Junior Participating Preferred Stock
outstanding shall have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions on, or redeem
or purchase or otherwise acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series B Junior Participating Preferred Stock;
(ii) declare or pay dividends on, or make any other distributions on any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Junior Participating Preferred
Stock, except dividends paid ratably on the Series B Junior Participating
Preferred Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of
any stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Junior Participating Preferred
Stock, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares of any
stock of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series B Junior Participating
Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of Series B
Junior Participating Preferred Stock, or any shares of stock ranking on a parity
with the Series B Junior Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective Series B Junior classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(c) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section 5,
purchase or otherwise acquire such shares at such time and in such manner.
6. Reacquired Shares. Any shares of Series B Junior Participating Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth in
the Corporation's Certificate of Incorporation, as then amended.
7. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, the holders of shares of Series B
Junior Participating Preferred Stock shall be entitled to receive an aggregate
amount per share equal to 1,000 times the aggregate amount to be distributed per
share to holders of shares of Common Stock plus an amount equal to any accrued
and unpaid dividends on such shares of Series B Junior Participating Preferred
Stock.
8. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case the shares of Series B Junior
Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share equal to 1,000 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged.
9. No Redemption. The shares of Series B Junior Participating Preferred
Stock shall not be redeemable.
10. Ranking. The Series B Junior Participating Preferred Stock shall rank
junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
11. Amendment. The Amended and Restated Certificate of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preference or special rights of the Series B Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority of the outstanding shares of
Series B Junior Participating Preferred Stock, voting separately as a series.
12. Fractional Shares. Series B Junior Participating Preferred Stock may be
issued in fractions of a share that shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series B Junior Participating Preferred Stock.
FIFTH. The directors shall have the power to make and alter or amend the
By-Laws; to fix the amount to be reserved as working capital, and to authorize
and cause to be executed, mortgages and liens without limit as to the amount,
upon the property and franchise of this Corporation.
With the consent in writing, and pursuant to a vote of the holders of a
majority of the capital stock issued and outstanding, the directors shall have
authority to dispose, in any manner, of the whole property of this Corporation.
The By-Laws shall determine whether and to what extent the accounts and
books of this Corporation, or any of them, shall be open to the inspection of
the stockholders; and non-stockholders shall have any right of inspecting any
account, or book, or document of this Corporation, except as conferred by the
law or the By-Laws, or by resolution of the stockholders.
The stockholders and directors shall have power to hold their meetings and
keep the books, documents and papers of the Corporation outside the State of
Delaware, at such places as may be from time to time designated by the By-Laws
or by resolution of the stockholders or directors, except as otherwise required
by the laws of Delaware.
It is the intention that the objects, purposes and powers specified in the
third paragraph hereof shall, except where otherwise specified in said
paragraph, be nowise limited or restricted by reference to or inference from the
terms of any other clause or paragraph in this Certificate of Incorporation, but
that the objects, purposes and powers specified in the third paragraph and in
each of the clauses or paragraphs of this charter shall be regarding as
independent objects, purposes and powers.
SIXTH. No director of the Corporation shall be liable to the Corporation or
its stockholders 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 stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
SEVENTH. Cumulative Voting. The holders of the shares of any class or
classes, or of a series or series thereof, of this Corporation, at elections of
directors of this Corporation, shall be entitled to as many votes as shall equal
the number of votes which such holder would be entitled to cast for the election
of directors with respect to his or her shares multiplied by the number of
directors to be elected by him or her, and he or she may cast all of such votes
for a single director or may distribute them among the number to be voted for,
or for any two or more of them as he or she may see fit.
This Amended and Restated Certificate of Incorporation has been duly
proposed by the Board of Directors of this Corporation and adopted by the
stockholders of this corporation in accordance with the provisions of Section
242 and Section 245 of the General Corporation Law of the State of Delaware.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed do the date set forth below by GARY S.
KLEDZIK, its Chairman and Chief Executive Officer, and JOSEPH E. NIDA, its
Secretary.
Date: January 26, 2004
/s/ GARY S. KLEDZIK
-------------------
GARY S. KLEDZIK
Chairman and Chief Executive Officer
ATTEST:
/s/ JOSEPH E. NIDA
- ------------------
JOSEPH E. NIDA
Secretary
================================================================================
MIRAVANT MEDICAL TECHNOLOGIES
February [ ], 2004 Special Meeting of Stockholders
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned stockholder of Miravant Medical Technologies, a Delaware
corporation, hereby acknowledges receipt of the Notice of Special Meeting of
Stockholders and Proxy Statement, each dated February [ ], 2004, and hereby
appoints Gary S. Kledzik and John M. Philpott, and each of them individually,
its proxy and attorney-in-fact, with full power to each of substitution, on
behalf and in the name of the undersigned, to represent the undersigned at the
Special Meeting of Stockholders of Miravant Medical Technologies to be held on
February [ ], 2004, at 10:00 a.m. local time, at Miravant Medical Technologies'
corporate offices, 336 Bollay Drive, Santa Barbara, California 93117, and at any
adjournment(s) thereof, and to vote all shares of Common Stock which the
undersigned would be entitled to vote if then and there personally present, on
the matter set forth on the reverse side and, in his discretion, upon such other
matter or matters which may properly come before the meeting and any
adjournment(s) thereof.
THIS PROXY WILL BE VOTED AS DIRECTED, OR, IF NO CONTRARY DIRECTION IS
INDICATED, WILL BE VOTED "FOR" THE AMENDMENT AND RESTATEMENT OF THE COMPANY'S
EXISTING CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED
SHARES OF PREFERRED STOCK AND COMMON STOCK, AND AS SAID PROXY DEEMS ADVISABLE ON
SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING.
CONTINUED AND TO BE SIGNED ON REVERSE SIDE
- --------------------------------------------------------------------------------
FOLD AND DETACH HERE
- --------------------------------------------------------------------------------
Please mark your votes as indicated in this example. /X/
PROPOSAL TO APPROVE THE AMENDMENT AND RESTATEMENT OF THE COMPANY'S EXISTING
CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF
PREFERRED STOCK AND COMMON STOCK. AGAINST ABSTAIN FOR
/ / / / / /
================================================================================
In their discretion, the proxies are authorized to vote upon such other
matter or matters which may properly come before the meeting and any
adjournment(s) thereof, including any postponement or adjournment of a
meeting. THIS PROXY WILL BE VOTED AS DIRECTED, OR, IF NO CONTRARY DIRECTION
IS INDICATED, WILL BE VOTED FOR THE PROPOSAL LISTED ABOVE, AND AS SAID
PROXY DEEMS ADVISABLE ON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE
MEETING.
Signature(s) _______________________________________ Dated: __________________,
2004
This Proxy should be marked, dated, signed by the stockholder(s) exactly as his
or her name appears hereon, and returned promptly in the enclosed envelope.
Persons signing in a fiduciary capacity should so indicate. If shares are held
by joint tenants or as community property, both should sign.
- --------------------------------------------------------------------------------
FOLD AND DETACH HERE