EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of July 1, 2004 (the
"Agreement"), is made by and between MIRAVANT MEDICAL TECHNOLOGIES, a Delaware
corporation, 000 Xxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Company"),
and ADVANCED CARDIOVASCULAR SYSTEMS, INC., a wholly owned subsidiary of Guidant
Corporation ("ACS").
W I T N E S S E T H :
WHEREAS, in connection with the Securities Purchase Agreement dated
July 1, 2004, between ACS 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 ACS shares of its Series A-1, Series
A-2 and Series A-3 Preferred Stock (the "Preferred Stock") and issue shares of
Common Stock into which Preferred Stock is converted. In connection with the
sale of the Preferred Stock to ACS (the "Offering"), ACS will be entitled to
registration rights as set forth in this Agreement; and
WHEREAS, to induce ACS to execute and deliver the Purchase Agreement,
the Company has agreed to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder, or
any similar successor statute (collectively, the "Securities Act"), and
applicable state securities laws with respect to the Registrable Securities, as
hereinafter defined.
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 ACS
hereby agree as follows:
1. Definitions. Capitalized terms used 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) "Holders" includes ACS and any holder of Registrable
Securities who receives such Registrable Securities pursuant to Section 9 hereof
who is entitled to include their securities in certain Registration Statements
filed by the Company.
(b) "Registrable Securities" means (i) the shares of Common
Stock issued or issuable upon the conversion of the Preferred Stock and (ii) any
shares of Common Stock or other securities issued or issuable from time to time
as a dividend or other distribution on or in exchange for or otherwise with
respect to the shares referred to in clause (i).
(c) "Registration Period" means the period between the date of
this Agreement and the earlier of (i) the date on which all of the Registrable
Securities 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
all of the Registrable Securities (in the opinion of ACS's counsel) may be
immediately sold without registration and free of restrictions on transfer.
(d) "Registration Statement" means a registration statement of
the Company filed with the Securities and Exchange Commission (the "SEC") under
the Securities Act to register the Registrable Securities.
(e) 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 following the
conversion by the Holders of at least one-third (1/3) of their Preferred Stock
into Registrable Securities (the date of such conversion referred to as the
"Conversion Date"). To the extent allowable under the Securities Act and the
rules promulgated thereunder, the Registration Statement shall include such
indeterminate number of additional shares of Common Stock as may become issuable
upon conversion of the Preferred Stock to prevent dilution resulting from stock
splits, stock dividends, dilution or similar transactions as provided in the
Purchase Agreement or the Certificate of Designation that describe the rights of
the Preferred Stock. The Registration Statement (and each amendment or
supplement thereto) shall be provided to, and subject to the reasonable approval
of, the Holders and their counsel. The Company will use commercially reasonable
efforts to cause the Registration Statement to be filed with the SEC as soon as
practicable, but not later than ninety (90) days from the Conversion Date (the
"Registration Deadline"). 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. 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. In the event that after the
Conversion 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 Registration
Deadline will be extended by a number of days equal to the days of any such
closure.
(b) Eligibility for Registration. The Company represents and
warrants that it currently does not meet the requirements for the use of Form
S-3, but it will use its commercially reasonable efforts to become eligible to
register the Common Stock on a Form S-3 in the future. However, the Company is
eligible to use Form S-2 under the Securities Act for registration of the sale
by the Holders of the Registrable Securities and the Company shall file all
reports required to be filed by the Company with the SEC in a timely manner so
as to maintain such eligibility for the use of Form S-2. The Company represents
that, when required to file a Registration Statement under this Agreement, it
will file a Form S-1 or Form S-2, at the Company's discretion, if it cannot
become eligible to file a Form S-3.
(c) Piggy-Back Registrations. If, at any time and from time to
time prior to the expiration of the Registration Period, the Company shall agree
to grant piggy-back registrations rights to any other holder of the Company's
securities or convertible securities, the Company shall grant to the Holders the
same rights pursuant to the same terms.
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(d) above.
(b) The Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) filed by the Company (i)
shall comply in all material respects with the requirements of the Securities
Act and the rules and regulations promulgated thereunder and (ii) 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 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 best 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 the Holders whose Registrable
Securities are included in the Registration Statement and the Holders' legal
counsel (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); (ii) by the end of the second business day from the date the Company
is notified of the effectiveness of the Registration Statement or any amendment
thereto, a notice stating that the Registration Statement or amendment has been
declared effective; and (iii) such number of copies of a prospectus, including a
preliminary prospectus, and all amendments and supplements thereto, and such
other documents as the Holders may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by the Holders.
(d) The Company shall use its 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 Holders
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 the Holders who hold 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 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 the Holders as the Holders may reasonably request.
Notwithstanding the foregoing provision, the Company shall not be required to
maintain the effectiveness of 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 (ii) thirty (30) days after the occurrence of the Suspension Event.
(f) The Company shall use its best 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 best
efforts to obtain the withdrawal of such order at the earliest possible time and
to notify the Holders who hold 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 Holders who hold 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 the Holders who hold 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 Holders; 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 the
Holders.
(i) The Company shall make available for inspection by the
Holders 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
the Holders 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 the Holders) 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(i). Each Holder 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 Investor'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 Holders 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 Holders is sought in or by a court
or governmental body of competent jurisdiction or through other means, give
prompt notice to the Holders and allow the Holders, 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 Holders 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 Holders 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 Holders 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 Securities
have been registered.
(m) The Company shall take all other reasonable actions
necessary to expedite and facilitate disposition by the Holders of the
Registrable Securities pursuant to the Registration Statement.
(n) At the request of any Holder, the Company shall promptly
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 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 Holder 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.
(p) From and after the date of this Agreement until the
expiration of the Registration Period, the Company shall not, and shall not
agree to, allow the holders of any other securities of the Company to include
any of their securities ("Other Securities") which are not Registrable
Securities in the Registration Statement required to be filed pursuant to
Section 2(a) hereof without the consent of the holders of a majority in interest
of the Registrable Securities unless the Holders are entitled to include
Registrable Securities in any registration statement required to be filed by the
Company at the request of the holders of such Other Securities.
(q) Use commercially reasonable efforts to list all
Registrable Securities covered by the Registration Statement on any securities
exchange on which the same class of securities issued by the Company are then
listed.
4. Obligations of the Holders. In connection with the registration of
the Registrable Securities, the Holders 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
Registrable Securities of a particular Holder that such Holder 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 the Holders shall be included without material alteration in the
Registration Statement and shall not be materially modified without such
Holder'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 Holders of the information the Company requires from each such Holder (the
"Requested Information") if such Holder elects to have any of its 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 Holder (a "Non-Responsive Holder"), then the Company may file the Registration
Statement without including Registrable Securities of such Non-Responsive
Holder.
(b) Each Holder, by such Holder'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 such Holder has notified the Company in
writing of such Holder's election to exclude all of the Holder's Registrable
Securities from the Registration Statement.
(c) Each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 3(e)
or 3(f), such Holder will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(e) or 3(f) and, if so directed by
the Company, such Holder 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 Holder's possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice.
(d) No Holder may participate in any underwritten registration
hereunder unless such Holder (i) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Holder 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 Holders pursuant to Section 3(e)
hereof shall be borne by the Company not to exceed five thousand dollars
($5,000) in the aggregate. In addition, the Company shall pay each Holder's
costs and expenses (including legal fees) incurred in connection with the
enforcement of the rights of such Holder hereunder.
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 and defend (i) each Holder who holds such Registrable
Securities, (ii) the directors, officers, employees, agents, and any person who
controls the Holder within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), any underwriter (as
defined in the Securities Act) for the Holders and the directors, officers,
employees, agents, and any person 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 ACS and each other Indemnified 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 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 such person
asserting the Claim was promptly advised in writing not to use the incorrect
prospectus prior to the use giving rise to the Violation and such person,
notwithstanding such advice, used it; 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 Holder pursuant to Section 9.
(b) In connection with any Registration Statement in which a
Holder is participating, (i) each such Holder shall, severally and not jointly,
agree 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 (each, 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 the Holder expressly for use in connection with such
Registration Statement, and (ii) subject to the restrictions set forth in
Section 7(c), such Holder will promptly reimburse any legal or other expenses
incurred by them in connection with investigating or defending any reasonable
Claim; provided, however, that the indemnification 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 the Holder, which
consent shall not be unreasonably withheld; provided further, however, that the
Holder shall be liable under this Section 6(b) for only that amount of a Claim
as does not exceed the net proceeds to ACS 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 Holder 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 the 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 or the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and any such indemnified party reasonably determines that
there may be legal defenses available to such indemnified party that are in
conflict with those available to such indemnifying party. The indemnifying party
shall pay for only one separate legal counsel for the indemnified parties, and
such legal counsel shall be selected by the Holders holding a majority in
interest of the Registrable Securities included in the Registration Statement to
which the Claim relates (if the parties entitled to indemnification hereunder
are Indemnified Persons) or by the Company (if the parties entitled to
indemnification hereunder are Indemnified Parties). 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. To the extent any indemnification provided for in
Section 6 herein is unavailable to the indemnified parties in respect of any
Claim 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 Claim to the fullest extent permitted by
law, in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, with respect to the Violation giving rise to the applicable Claim, which
relative fault shall be determined by reference to, among other things, whether
the Violation relates to information supplied by the indemnifying party or the
indemnified party. 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 parties 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 indemnified parties 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
any Claim 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 7, no Holder or underwriter shall
be required to contribute any amount in excess of the amount by which (a) in the
case of any Holder, the net proceeds actually received by such Holder from the
sale of Registrable Securities pursuant to such Registration Statement 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 Holder 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 Holders
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 Holders 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 each Holder so long as the Holder holds
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 Holder 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 Holders to transferees or assignees of all or any
portion of such securities or Preferred Stock convertible into Registrable
Securities only if (i) the Holder 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 the Holders holding a majority in interest of
the Registrable Securities; provided, however, that (a) no consideration shall
be paid to a Holder by the Company in connection with an amendment hereto unless
each Holder similarly affected by such amendment receives a pro rata amount of
consideration from the Company; (b) unless a Holder otherwise agrees, each
amendment hereto must similarly affect each Holder, and (c) assignees of
registration rights made in accordance with Section 8 of this Agreement may
become parties to this Agreement without any amendment hereto or any consent or
approval of any other Holder. Any amendment or waiver effected in accordance
with this Section 10 shall be binding upon the Holders and the Company.
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 or the securities upon which such Registrable
Securities are issuable upon conversion thereof. 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 in writing and shall be delivered
personally or sent by a nationally recognized overnight delivery service or by
facsimile transmission with confirmation of receipt. Any notice so given shall
be deemed effective upon receipt if delivered personally or by overnight
delivery 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 11(b):
If to the Company:
------------------
Miravant Medical Technologies
000 Xxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with copy (which will not constitute notice) to:
Xxxxxxxx Xxxxxx Xxxxxxx & Hampton, LLP
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
with copy (which will not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to ACS:
Advanced Cardiovascular Systems, Inc.
Vascular Intervention Group
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy (which will not constitute notice) to:
Faegre & Xxxxxx LLP
2200 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx
Facsimile: (000) 000-0000
(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 without giving
effect to conflict-of-laws principles. The parties hereto irrevocably consent to
the jurisdiction of the United States federal courts and state courts located in
the County of Santa Xxxxx in the State of California in any suit or proceeding
based on or arising under this Agreement or the transactions contemplated hereby
and irrevocably agree that all claims in respect of such suit or proceeding may
be determined in such courts. The Company and each Holder irrevocably waives the
defense of an inconvenient forum to the maintenance of such suit or proceeding
in such forum. The Company and the Holders further agree that service of process
upon the Company or the Holders, as applicable, in accordance with Section 11(b)
shall be deemed in every respect effective service of process upon the Company
or the Holders in any suit or proceeding arising hereunder. Nothing herein
contained shall affect the Holders' right to serve process in any other manner
permitted by law. The parties hereto agree that a final non-appealable judgment
in any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
(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 Holders shall limit any remedy which would otherwise be available
to Holders at law or in equity. Nothing in this Agreement shall limit any rights
a Holder 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 the
Holders. 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 the Holders 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.
(m) Consents. All consents and other determinations to be made
by the Holders pursuant to this Agreement shall be made by the Holders who hold
a majority of the Registrable Securities and who are subject to provisions of
this Agreement, determined as if all shares of Preferred Stock then outstanding
had been converted into Registrable Securities.
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: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
ACS:
ADVANCED CARDIOVASCULAR SYSTEMS, INC.
By: ___________________________
Name: Xxxx X. Xxxxxx
Title: Vice President, Finance and Business Development
[Signature Page to the Registration Rights Agreement]
