D-9
EXHIBIT D
TO
NOTE AND WARRANT PURCHASE AGREEMENT
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, is entered into as of March 7, 2005, by
and between MIRAVANT MEDICAL TECHNOLOGIES, a Delaware corporation (the
"Company"), with headquarters located at 336 Bollay Drive, Santa Barbara,
California 93117, and ST. CLOUD INVESTMENTS, LTD., a British Virgin Islands
company (the "Purchaser"). Capitalized terms used herein are used as defined in
Section 1 of this Agreement.
RECITALS
A. In connection with the Note and Warrant Purchase Agreement dated as of
March 7, 2005 between the Purchaser and the Company (the "Purchase Agreement"),
the Company has agreed, upon the terms and subject to the conditions of said
Purchase Agreement, to issue and sell to the Purchaser, and the Purchase has
agreed to purchase from the Company, up to FIFTEEN MILLION DOLLARS ($15,000,000)
of the Company's Secured Convertible Promissory Notes and related Warrants.
B. To induce the Purchaser to execute and deliver the Purchase Agreement,
the Company has agreed to provide certain registration rights under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
shares of Common Stock issuable upon conversion of the Notes, in payment of
interest on the Notes and upon exercise of the Warrants (collectively, the
"Registrable Shares").
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following
meanings:
(a) "Common Stock" means the Company's common stock, par value $0.01 per share.
(b) "Holders" are stockholders of the Company who, by virtue of agreements with
the Company, are entitled to include their securities in certain
Registration Statements filed by the Company.
(c) "Purchaser" means the Purchaser and any transferee or assignee of the
Purchaser who agree to become bound by the provisions of this Agreement in
accordance with Section 9 hereof.
(d) "Registrable Securities" means the Registrable Shares, together with any
shares of Common Stock or other securities which may be issued as a
dividend or other distribution or in exchange for Registrable Shares and
any additional shares of Common Stock, which may be issued to Purchaser in
accordance with Section 4.4 of the Purchase Agreement.
(e) "Registration Period" means the period between the date of this Agreement
and the earliest of (i) the date on which all of the Registrable Securities
(including all shares of Common Stock into which the Warrants are
exercisable) have been sold in transactions where the transferee is not
subject to securities law resale restrictions (or is subject to securities
law resale restrictions solely because it is an "affiliate" of the Company
under the Securities Act and the Rules promulgated thereunder), or (ii) the
date on which the Registrable Securities (in the opinion of Purchaser's or
the Company's counsel) may be immediately sold without registration and
free of restrictions on transfer.
(f) "Registration Statement" means a registration statement of the Company
filed with the Securities and Exchange Commission (the "SEC") under the
Securities Act.
(g) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act and applicable rules and regulations
thereunder and pursuant to Rule 415 under the Securities Act, and the
declaration or ordering of effectiveness of such Registration Statement by
the SEC.
2. Registration.
(a) Mandatory Registration. Pursuant to the terms of this Section 2(a), the
Company will prepare and file a Registration Statement with the SEC,
registering all of the Registrable Securities for resale promptly within
ninety (90) days of written demand of the of the holders of at least a
majority of the Registrable Securities then outstanding (the "Mandatory
Registration Statement"); provided, however, that the Company shall not be
obligated to file any Registration Statement pursuant to this Section 2(a)
until after the Commitment Expiration Date (as defined in the Purchase
Agreement). To the extent allowable under the Securities Act and the Rules
promulgated thereunder, the Registration Statement shall include the
Registrable Securities of the Purchase Agreement (i) to prevent dilution
resulting from stock splits, stock dividends or similar transactions, or
(ii) by reason of changes in the exercise price of the Warrants or the
Conversion Price of the Notes in accordance with the terms thereof. The
Registration Statement (and each amendment or supplement thereto) shall be
provided to, and subject to the reasonable approval of, the Purchaser and
its counsel. The Company shall use its commercially reasonable efforts to
cause such Registration Statement to be declared effective by the SEC as
soon as practicable after filing if the SEC does not review the
Registration Statement. Additionally, if the SEC reviews the Registration
Statement and requires the Company to make modifications thereto, then it
will use its commercially reasonable efforts to have the Registration
Statement declared effective as soon as practicable. In the event that
after the Closing Date and before the Registration Statement is filed, the
offices of the SEC are closed due to acts of God, war or terror, then the
filing deadline will be extended by a number of days equal to the days of
any such closure. Such commercially reasonable efforts shall include, but
not be limited to, promptly responding to all comments received from the
staff of the SEC. Should the Company receive notification from the SEC that
the Registration Statement will receive no action or no review from the
SEC, the Company shall cause such Registration Statement to become
effective within five (5) business days of such SEC notification. Once
declared effective by the SEC, the Company shall cause such Registration
Statement to remain effective throughout the Registration Period. The
Company shall only be obligated to cause one Registration Statement to
become effective pursuant to this Section 2(a).
(b) Piggyback Registrations.
(1) If, at any time prior to the expiration of the Registration Period, the
Mandatory Registration Statement is not declared effective with respect to
all of the Registrable Securities and the Company decides to register any
of its securities for its own account or for the account of others, then
the Company will promptly give the Holders written notice thereof and will
use its best efforts to include in such registration all or any part of the
Registrable Securities requested by the Holders to be included therein
(excluding any Registrable Securities previously included in a Registration
Statement). This requirement does not apply to Company registrations on
Form S-4 or S-8 or their equivalents relating to equity securities to be
issued solely in connection with an acquisition of any entity or business
or equity securities issuable in connection with stock option or other
employee benefit plans. The Holders must give its request for registration
under this paragraph to the Company in writing within 15 days after receipt
from the Company of notice of such pending registration. If the
registration for which the Company gives notice is a public offering
involving an underwriting, the Company will so advise the Holders as part
of the above-described written notice. In that event, if the managing
underwriter(s) of the public offering impose a limitation on the number of
shares of Common Stock that may be included in such Registration Statement
because, in such underwriter(s)' judgment, such limitation would be
necessary to effect an orderly public distribution, then the Company will
be obligated to include only such limited portion, if any, of the
Registrable Securities with respect to which the Holders have requested
inclusion hereunder. Any exclusion of Registrable Securities will be made
pro rata among all holders of the Company's securities seeking to include
shares of Common Stock in proportion to the number of shares of Common
Stock sought to be included by those holders. However, the Company will not
exclude any Registrable Securities unless the Company has first excluded
all outstanding securities the holders of which are not entitled by right
to inclusion of securities in such Registration Statement or are not
entitled pro rata inclusion with the Registrable Securities.
(2) No right to registration of Registrable Securities under this Section 2(b)
limits in any way the registration required under Section 2(a) above. The
obligations of the Company under this Section 2(b) expire upon the earlier
of (i) the effectiveness of the Mandatory Registration Statement covering
all of the Registrable Securities, (ii) after the Company has afforded the
opportunity for the Holders to exercise registration rights under this
Section 2(b) for three (3) registrations (provided, however, that the
Holders may include in any additional Registration Statement filed by the
Company the Registrable Securities excluded under Section 2(b)(1) above),
or (iii) when all of the Registrable Securities may be sold without
registration and free of restrictions on transfer.
(c) Eligibility for Registration. As of the date hereof, the Company represents
and warrants that it currently does not meet the requirements for the use
of Form S-3 for registration of the sale by the Purchaser of the
Registrable Securities. The Company currently does not meet the SEC
requirement provided in the Form S-3 instructions which requires securities
of the same class as the Common Shares be listed on a national securities
exchange or quoted on Nasdaq. The Company represents that it will file a
Form S-1 or Form S-2, at the Company's discretion and depending on the
Company's eligibility for such forms, if it cannot become eligible to file
a Form S-3.
3. Additional Obligations of the Company. In connection with the registration
of the Registrable Securities, the Company shall have the following
additional obligations:
(a) The Company shall keep the Registration Statement required by Section 2(a)
hereof effective pursuant to Rule 415 under the Securities Act at all times
during the Registration Period as defined in Section 1(e) above.
(b) The Registration Statement (including any amendments or supplements thereto
and prospectuses contained therein) filed by the Company shall not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading. The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement
and the prospectus used in connection with the Registration Statement as
may be necessary to keep the Registration Statement effective at all times
during the Registration Period, and, during such period, shall comply with
the provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration Statement
until such time as all of such Registrable Securities have been disposed of
in accordance with the intended methods of disposition by the sellers
thereof as set forth in the Registration Statement. In the event the number
of shares of Common Stock included in a Registration Statement filed
pursuant to this Agreement is insufficient to cover all of the Registrable
Securities, the Company shall amend, if permissible, the Registration
Statement and/or file a new Registration Statement so as to cover all of
the Registrable Securities as soon as practicable, but in no event more
than twenty (20) business days after the Company first determines (or
reasonably should have determined) the need therefor. The Company shall use
its commercially reasonable efforts to cause such amendment and/or new
Registration Statement to become effective as soon as practicable following
the filing thereof.
(c) The Company shall furnish to each Purchaser whose Registrable Securities
are included in the Registration Statement (i) promptly after the same is
prepared and publicly distributed, filed with the SEC or received by the
Company, one copy of the Registration Statement and any amendment thereto;
each preliminary prospectus and final prospectus and each amendment or
supplement thereto; and, in the case of the Registration Statement required
under Section 2(a) above, each letter written by or on behalf of the
Company to the SEC and each item of correspondence from the SEC, in each
case relating to such Registration Statement (other than any portion of any
item thereof which contains information for which the Company has sought
confidential treatment); and (ii) such number of copies of a prospectus,
including a preliminary prospectus, and all amendments and supplements
thereto, and such other documents as such Purchaser may reasonably request
in order to facilitate the disposition of the Registrable Securities owned
by such Purchaser.
(d) The Company shall use its commercially reasonable best efforts to (i)
register and qualify the Registrable Securities covered by the Registration
Statement under such other securities or blue sky laws of such
jurisdictions as the Purchaser reasonably request, (ii) prepare and file in
those jurisdictions such amendments (including post-effective amendments)
and supplements to such registrations as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and
(iv) take all other actions reasonably necessary or advisable to qualify
the Registrable Securities for sale in such jurisdictions. Notwithstanding
the foregoing provision, the Company shall not be required in connection
therewith or as a condition thereto to (i) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of process in any
such jurisdiction, (iv) provide any undertakings that cause more than
nominal expense or burden to the Company, or (v) make any change in its
charter or bylaws, which in each case the Board of Directors of the Company
determines to be contrary to the best interests of the Company and its
stockholders.
(e) The Company shall notify each Purchaser who holds Registrable Securities
being sold pursuant to a Registration Statement of the happening of any
event of which the Company has knowledge as a result of which the
prospectus included in the Registration Statement as then in effect
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (a "Suspension Event"). The Company shall make such
notification as promptly as practicable after the Company becomes aware of
such Suspension Event, shall promptly, but in all events within five (5)
business days, use its commercially reasonable best efforts to prepare a
supplement or amendment to the Registration Statement to correct such
untrue statement or omission, and shall deliver a number of copies of such
supplement or amendment to each Purchaser as such Purchaser may reasonably
request. Notwithstanding the foregoing provision, the Company shall not be
required to maintain the effectiveness of the Registration Statement or to
amend or supplement the Registration Statement for a period (a "Delay
Period") expiring upon the later to occur of (i) the date on which the
Company is able to comply with its disclosure obligations and SEC
requirements related thereto, or (iii) thirty (30) days after the
occurrence of the Suspension Event.
(f) The Company shall use its commercially reasonable efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement and, if such an order is issued, shall use its
commercially reasonable best efforts to obtain the withdrawal of such order
at the earliest possible time and to notify each Purchaser who holds
Registrable Securities being sold (or, in the event of an underwritten
offering, the managing underwriters) of the issuance of such order and the
resolution thereof.
(g) The Company shall permit a single firm of counsel designated by the
Purchaser who holds a majority in interest of the Registrable Securities
being sold pursuant to such registration to review the Registration
Statement and all amendments and supplements thereto (as well as all
requests for acceleration or effectiveness thereof) a reasonable period of
time prior to their filing with the SEC, and shall not file any document in
a form to which such counsel reasonably objects.
(h) At the request of any Purchaser who holds Registrable Securities being sold
pursuant to such registration, the Company shall furnish on the date that
Registrable Securities are delivered to an underwriter for sale in
connection with the Registration Statement (i) a letter, dated such date,
from the Company's independent certified public accountants in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed
to the Purchaser; and (ii) an opinion, dated such date, from counsel
representing the Company for purposes of such Registration Statement, in
form and substance as is customarily given in an underwritten public
offering, addressed to the underwriters and Purchaser.
(i) The Company shall make available for inspection by any Purchaser whose
Registrable Securities are being sold pursuant to such registration, any
underwriter participating in any disposition pursuant to the Registration
Statement, and any attorney, accountant or other agent retained by any such
Purchaser or underwriter (collectively, the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and properties
of the Company (collectively, the "Records"), as shall be reasonably
necessary to enable each Inspector to exercise its due diligence
responsibility, and cause the Company's officers, directors and employees
to supply all information which any Inspector may reasonably request for
purposes of such due diligence; provided, however, that each Inspector
shall hold in confidence and shall not make any disclosure (except to a
Purchaser) of any Record or other information which the Company determines
in good faith to be confidential, and of which determination the Inspectors
are so notified, unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration Statement,
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court or government body of competent jurisdiction, or such
release is reasonably necessary in connection with litigation or other
legal process or (iii) the information in such Records has been made
generally available to the public other than by disclosure in violation of
this or any other agreement. The Company shall not be required to disclose
any confidential information in such Records to any Inspector until and
unless such Inspector shall have entered into confidentiality agreements
(in form and substance satisfactory to the Company) with the Company with
respect thereto, substantially in the form of this Section 3(j). Each
Purchaser agrees that it shall, upon learning that disclosure of such
Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and
allow the Company, at the Company's expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order for, the
Records deemed confidential. Nothing herein shall be deemed to limit the
Purchaser's' ability to sell Registrable Securities in a manner which is
otherwise consistent with applicable laws and regulations.
(j) The Company shall hold in confidence and shall not make any disclosure of
information concerning the Purchaser provided to the Company pursuant
hereto unless (i) disclosure of such information is necessary to comply
with federal or state securities laws, (ii) the disclosure of such
information is necessary to avoid or correct a misstatement or omission in
any Registration Statement, (iii) the release of such information is
ordered pursuant to a subpoena or other order from a court or governmental
body of competent jurisdiction, or such release is reasonably necessary in
connection with litigation or other legal process or (iv) such information
has been made generally available to the public other than by disclosure in
violation of this or any other agreement. The Company agrees that it shall,
upon learning that disclosure of such information concerning the Purchaser
is sought in or by a court or governmental body of competent jurisdiction
or through other means, give prompt notice to the Purchaser and allow the
Purchaser, at their expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
(k) The Company shall provide a transfer agent and registrar, which may be a
single entity, for the Registrable Securities not later than the effective
date of the Registration Statement.
(l) The Company shall cooperate with the Purchaser who hold Registrable
Securities being sold and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing Registrable Securities to be
sold pursuant to the Registration Statement and enable such certificates to
be in such denominations or amounts as the case may be, and registered in
such names as the managing underwriter or underwriters, if any, or the
Purchaser may reasonably request; and, within three (3) business days after
a Registration Statement which includes Registrable Securities is ordered
effective by the SEC, the Company shall deliver, and shall cause legal
counsel selected by the Company to deliver, to the transfer agent for the
Registrable Securities (with copies to the Purchaser whose Registrable
Securities are included in such Registration Statement) instructions to the
transfer agent to issue new stock certificates without a legend and an
opinion of such counsel that the Registrable Shares have been registered.
(m) The Company shall take all other reasonable actions necessary to expedite
and facilitate disposition by the Purchaser of the Registrable Securities
pursuant to the Registration Statement.
(n) At the request of any Purchaser, the Company shall promptly prepare and
file with the SEC such amendments (including post-effective amendments) and
supplements to a Registration Statement and the prospectus used in
connection with the Registration Statement as may be necessary in order to
change the plan of distribution set forth in such Registration Statement to
conform to written information supplied to the Company by such Purchaser
for such purpose.
(o) The Company shall comply with all applicable laws related to a Registration
Statement and offering and sale of securities and all applicable rules and
regulations of governmental authorities in connection therewith.
4. Obligations of the Purchaser. In connection with the registration of the
Registrable Securities, the Purchaser shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement with respect to the Purchaser that
the Purchaser shall furnish to the Company such information regarding
itself, the number of Registrable Securities held by it and the intended
method of disposition of the Registrable Securities held by it as shall be
reasonably required by rules of the SEC to effect the registration of the
Registrable Securities. The information so provided by any given Purchaser
shall be included without material alteration in the Registration Statement
and shall not be modified without such Purchaser's written consent. At
least ten (10) business days prior to the first anticipated filing date of
the Registration Statement, the Company shall notify the Purchaser of the
information the Company requires from each Purchaser (the "Requested
Information") if such Purchaser elects to have any of such Purchaser's
Registrable Securities included in the Registration Statement. If within
five (5) business days of such notice the Company has not received the
Requested Information from a Purchaser (a "Non-Responsive Purchaser"), then
the Company may file the Registration Statement without including
Registrable Securities of such Non-Responsive Purchaser once the
Registration Statement has been declared effective by the SEC the Company
shall not be obligated to file a post-effective amendment to the
Registration Statement to include, or otherwise register the resale of, the
shares of such Non-Responsive Purchaser.
(b) The Purchaser, by the Purchaser's' acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by
the Company in connection with the preparation and filing of the
Registration Statement hereunder, unless any given Purchaser has notified
the Company in writing of such Purchaser's election to exclude all of such
Purchaser's Registrable Securities from the Registration Statement.
(c) In the event the Purchaser holding a majority in interest of the
Registrable Securities being registered determine to engage the services of
an underwriter, the Purchaser agrees to enter into and perform such
Purchaser's' obligations under an underwriting agreement, in usual and
customary form, including, without limitation, customary indemnification
and contribution obligations, with the managing underwriter of such
offering and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of the Registrable Securities,
unless any Purchaser have notified the Company in writing of such
Purchaser's election to exclude all of such Purchaser's' Registrable
Securities from the applicable Registration Statement. No Purchaser shall
be obligated to participate in any such underwriting.
(d) The Purchaser agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3(f) or 3(g),
the Purchaser will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Purchaser's' receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(f) or 3(g)
and, if so directed by the Company, such Purchaser shall deliver to the
Company (at the expense of the Company) or destroy (and deliver to the
Company a certificate of destruction) all copies, other than file copies,
in such Purchaser's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
(e) No Purchaser may participate in any underwritten registration hereunder
unless such Purchaser (i) agrees to sell such Purchaser's Registrable
Securities on the basis provided in any underwriting arrangements approved
by the Purchaser entitled hereunder to approve such arrangements, (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements, and (iii) agrees to pay its pro
rata share of all underwriting discounts and commissions and other fees and
expenses of investment bankers and any manager or managers of such
underwriting and legal expenses of the underwriter applicable with respect
to its Registrable Securities, in each case to the extent not payable by
the Company pursuant to the terms of this Agreement.
5. Expenses of Registration. All expenses, other than underwriting discounts
and commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation,
all registration, listing and qualifications fees, printers and accounting
fees, the fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one counsel selected by the Purchaser
pursuant to Section 3(e) hereof, shall be borne by the Company.
6. Indemnification. In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Purchaser who holds such Registrable Securities, the
directors, if any, of such Purchaser, the officers, if any, of such
Purchaser, each person, if any, who controls any Purchaser within the
meaning of the Securities Act or the Exchange Act, any underwriter (as
defined in the Securities Act) for the Purchaser, the directors, if any, of
such underwriter and the officers, if any, of such underwriter, and each
person, if any, who controls any such underwriter within the meaning of the
Securities Act or the Exchange Act (each, an "Indemnified Person"), against
any losses, claims, damages, expenses or liabilities (joint or several)
(collectively "Claims") to which any of them become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations in the Registration Statement, or any
post-effective amendment thereof, or any prospectus included therein: (i)
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any post-effective amendment
thereof or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus if
used prior to the effective date of such Registration Statement, or
contained in the final prospectus (as amended or supplemented, if the
Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact
necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading,
or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or any state securities law or any rule or
regulation (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in
Section 6(c) with respect to the number of legal counsel, the Company shall
reimburse the Purchaser and each such underwriter or controlling person,
promptly as such expenses are incurred and are due and payable, for any
legal fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a): (A) shall not apply to a Claim arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by any Indemnified Person or
underwriter for such Indemnified Person expressly for use in connection
with the preparation of the Registration Statement or any such amendment
thereof or supplement thereto, if such prospectus was timely made available
by the Company pursuant to Section 3(c) hereof; (B) with respect to any
preliminary prospectus shall not inure to the benefit of any such person
from whom the person asserting any such Claim purchased the Registrable
Securities that are the subject thereof (or to the benefit of any person
controlling such person) if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected in the
prospectus, as then amended or supplemented, if a prospectus was timely
made available by the Company pursuant to Section 3(c) hereof; and (C)
shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of the Indemnified Persons and shall survive the transfer of the
Registrable Securities by the Purchaser pursuant to Section 9.
(b) In connection with any Registration Statement in which a Purchaser is
participating, each such Purchaser, severally and not jointly, agrees to
indemnify and hold harmless, to the same extent and in the same manner set
forth in Section 6(a), the Company, each of its directors, each of its
officers who signs the Registration Statement, each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act, any underwriter and any other stockholder selling securities
pursuant to the Registration Statement or any of its directors or officers
or any person who controls such stockholder or underwriter within the
meaning of the Securities Act or the Exchange Act (collectively and
together with an Indemnified Person, an "Indemnified Party"), against any
Claim to which any of them may become subject, under the Securities Act,
the Exchange Act or otherwise, insofar as such Claim arises out of or is
based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished to the Company by such Purchaser expressly
for use in connection with such Registration Statement, and such Purchaser
will promptly reimburse any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section
6(b) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of such Purchaser,
which consent shall not be unreasonably withheld; provided further,
however, that the Purchaser shall be liable under this Section 6(b) for
only that amount of a Claim as does not exceed the net proceeds to such
Purchaser as a result of the sale of Registrable Securities pursuant to
such Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Registrable
Securities by the Purchaser pursuant to Section 9. Notwithstanding anything
to the contrary contained herein, the indemnification agreement contained
in this Section 6(b) with respect to any preliminary prospectus shall not
inure to the benefit of any Indemnified Party if the untrue statement or
omission of material fact contained in the preliminary prospectus was
corrected on a timely basis in the prospectus, as then amended or
supplemented.
(c) Promptly after receipt by an Indemnified Person or Indemnified Party under
this Section 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person or Indemnified Party shall,
if a Claim in respect thereof is to made against any indemnifying party
under this Section 6, deliver to the indemnifying party a written notice of
the commencement thereof and this indemnifying party shall have the right
to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying parties; provided, however, that an Indemnified Person or
Indemnified Party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified
Party and the indemnifying party would be inappropriate due to actual or
potential differing interests between such Indemnified Person or
Indemnified Party and other party represented by such counsel in such
proceeding. The Company shall pay for only one separate legal counsel for
the Purchaser; such legal counsel shall be selected by the Purchaser
holding a majority in interest of the Registrable Securities. The failure
to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person or
Indemnified Party under this Section 6, except to the extent that the
indemnifying party is prejudiced in its ability to defend such action. The
indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due
and payable. The provisions of this Section 6 shall survive the termination
of this Agreement.
7. Contribution. If the indemnification provided for in Section 6 herein is
unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities as between the Company on the one hand and any
Purchaser on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of such Purchaser in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of any Purchaser on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied
by the Company or by such Purchaser.
In no event shall the obligation of any Indemnifying Party to contribute
under this Section 7 exceed the amount that such Indemnifying Party would have
been obligated to pay by way of indemnification if the indemnification provided
for under Section 6(a) or 6(b) hereof had been available under the
circumstances.
The Company and the Purchaser agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Purchaser or the underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraphs shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this section, no Purchaser or underwriter
shall be required to contribute any amount in excess of the amount by which (i)
in the case of any Purchaser, the net proceeds received by such Purchaser from
the sale of Registrable Securities or (ii) in the case of an underwriter, the
total price at which the Registrable Securities purchased by it and distributed
to the public were offered to the public exceeds, in any such case, the amount
of any damages that such Purchaser or underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act ) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
8. Public Information. With a view to making available to the Purchaser the
benefits of Rule 144 promulgated under the Securities Act or any other
similar rule or regulation of the SEC that may at any time permit the
Purchaser to sell securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(a) File with the SEC in a timely manner and make and keep available all
reports and other documents required of the Company under the Exchange Act
so long as the Company remains subject to such requirements and the filing
and availability of such reports and other documents is required for the
applicable provisions of Rule 144; and
(b) Furnish to the Purchaser so long as the Purchaser hold Registrable
Securities, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144 and the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of
the Company and such other reports and documents so filed by the Company,
and (iii) such other information as may be reasonably requested to permit
the Purchaser to sell such securities pursuant to Rule 144 without
registration.
9. Assignment of Registration Rights. The rights to have the Company register
Registrable Securities pursuant to this Agreement shall be automatically
assigned by the Purchaser to transferees or assignees of all or any portion
of such securities or Warrants exercisable into Registrable Securities only
if (i) the Purchaser agrees in writing with the transferee or assignee to
assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (ii) the Company
is, within a reasonable time after such transfer or assignment, furnished
with written notice of the name and address of such transferee or assignee
and the securities with respect to which such registration rights are being
transferred or assigned, (iii) following such transfer or assignment the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act and applicable state securities laws,
(iv) at or before the time the Company received the written notice
contemplated by clause (ii) of this sentence, the transferee or assignee
agrees in writing with the Company to be bound by all of the provisions
contained herein, (v) such transfer shall have been made in accordance with
the applicable requirements of the Purchase Agreement, and (vi) such
transferee shall be an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act.
10. Amendment of Registration Rights. Provisions of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with
the written consent of the Company and Purchaser holding a majority of the
Registrable Securities then outstanding. Any such amendment or waiver
effected in accordance with this paragraph shall be binding upon each
holder of Registrable Securities (including securities into which such
securities have been converted or exchanged or for which such securities
have been exercised) and each future holder of all such securities. Each
Purchaser acknowledges that by the operation of this paragraph, the holders
of a majority of the Registrable Securities then outstanding will have the
right and power to diminish or eliminate all rights of Purchaser under this
Agreement.
11. Miscellaneous.
(a) Conflicting Instructions. A person or entity is deemed to be a holder of
Registrable Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to
the same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) Notices. Any notices required or permitted to be given under the terms of
this Agreement shall be sent by certified or registered mail (with return
receipt requested) or delivered personally or by courier (including a
nationally recognized overnight delivery service) or by facsimile
transmission. Any notice so given shall be deemed effective upon receipt if
delivered personally, by U.S. Mail or by courier or facsimile transmission,
in each case addressed to a party at the following address or such other
address as each such party furnishes to the other in accordance with this
Section 12(b), and:
if to the Company:
-----------------
Miravant Medical Technologies
336 Bollay Drive
Santa Barbara, CA 93117
Attention: John M. Philpott
Facsimile: (805) 685-1901
with copy to:
Sheppard Mullin Richter & Hampton, LLP
800 Anacapa Street
Santa Barbara, CA 93101
Attention: Joseph E. Nida, Esq.
Facsimile: (805) 568-1955
with copy to:
-------------
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Attention: John Sheridan, Esq.
Facsimile: (650) 493-6811
If to the Purchaser:
===============================
-------------------------------
Attention:
Facsimile: ______________________
with a copy to:
--------------
Stradling, Yocca, Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
Attention: Bruce Feucther
Facsimile: (949) 823-5123
(c) Waiver. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to
contracts made and to be performed in the State of California.
(e) Severability. In the event that any provision of this Agreement is
invalid or unenforceable under any applicable statute or rule of law,
then such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any provision hereof which may prove
invalid or unenforceable under any law shall not affect the validity or
enforceability of any other provision hereof.
(f) Entire Agreement. This Agreement and the Purchase Agreement (including
all schedules and exhibits thereto) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof.
There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein or therein. This Agreement
supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof.
(g) Successors and Assigns. Subject to the requirements of Section 9
hereof, this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties hereto.
(h) Use of Pronouns. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may
require.
(i) Headings. The headings and subheadings in the Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(j) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall constitute
one and the same agreement. This Agreement, once executed by a party, may
be delivered to the other party hereto by facsimile transmission, and
facsimile signatures shall be binding on the parties hereto.
(k) Further Acts. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the
other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(l) Remedies. No provision of this Agreement providing for any remedy to the
Purchaser shall limit any remedy which would otherwise be available to the
Purchaser at law or in equity. Nothing in this Agreement shall limit any
rights a Purchaser may have with any applicable federal or state securities
laws with respect to the investment contemplated hereby. The Company
acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to a Purchaser. Accordingly, the Company acknowledges that
the remedy at law for a breach of its obligations under this Agreement will
be inadequate and agrees, in the event of a breach or threatened breach by
the Company of the provisions of this Agreement, that a Purchaser shall be
entitled, in addition to all other available remedies, to an injunction
restraining any breach and requiring immediate compliance, without the
necessity of showing economic loss and without any bond or other security
being required.
(signature page immediately follows)
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
COMPANY:
MIRAVANT MEDICAL TECHNOLOGIES
By:
----------------------------------------
Name: John M. Philpott
Title: Chief Financial Officer
PURCHASER:
ST. CLOUD INVESTMENTS, LTD.
a British Virgin Islands company
By:
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Name:
Title: