EXHIBIT E
AGREEMENT AND AMENDMENT TO
THE EQUITY INVESTMENT AGREEMENT
AGREEMENT AND AMENDMENT, dated as of February 17, 1999 (the
"Agreement"), to the Equity Investment Agreement, dated as of January 15, 1999,
by and between Miravant Medical Technologies, a Delaware Corporation (the
"Company"), Pharmacia & Upjohn, Inc., a Delaware corporation ("P&U Inc.") and
Pharmacia & Upjohn S.p.A., an Italian corporation ("P&U S.p.A." and together
with P&U Inc., "P&U") (the "Equity Investment Agreement").
WHEREAS, P&U wishes to make P&U S.p.A. the Purchaser of any securities
to be received by P&U pursuant to the Equity Investment Agreement; and
WHEREAS, each party to the Equity Investment Agreement desires to amend
the Equity Investment Agreement in the manner set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Equity Investment Agreement.
Section 2. The Equity Investment Agreement is hereby amended, effective
as of the date hereof, as follows:
(i) The definition of the term "Purchaser" is hereby amended to read
in its entirety as follows:
"Purchaser" shall mean Pharmacia & Upjohn S.p.A.
(ii) The last sentence of Section 4.13 is hereby amended to read in
its entirety as follows:
To the Company's knowledge, there are no commitments or contractual
obligations of which the Company is a party which would prohibit the
Company from entering into this Agreement or performing its obligations
hereunder or which would affect the Company's ability to amend with the
Purchaser or its Affiliates the licenses for
the Product Intellectual Property provided for in the
License Agreements.
(iii) Section 6.01(a) is hereby amended to read in its entirety as
follows:
(a) The Purchaser is a corporation organized under the laws of
Italy having its principal place of business in Milan, Italy.
(iv) Section 10.01 is amended to read in its entirety as follows:
Section 10.01 Lockup. Prior to the 180th calendar day following
the Closing Date, the Purchaser shall not, and Pharmacia & Upjohn, Inc.
shall not and shall not cause its Affiliates to, sell, assign, transfer
or otherwise dispose of any of the Securities, except that the
Purchaser may transfer any of the Securities to any wholly owned
subsidiary of Pharmacia & Upjohn, Inc.
(v) Section 11.06 is hereby amended to add the following to addresses
to which notices to the Purchaser must be directed:
Pharmacia & Upjohn S.p.A.,
xxx Xxxxxx Xxxx 0.0,
00000 Xxxxx, Xxxxx
Telecopy: 39 2 48381 2988
Attention: Legal Counsel
(vi) The last sentence of Section 11.08 is amended to read in its
entirety as follows:
The provisions of the previous sentence notwithstanding, the Purchaser
may assign its rights and obligations under this Agreement to any
wholly owned Subsidiary of Pharmacia & Upjohn, Inc. without the consent
of any other party to this Agreement.
Section 5. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one Agreement.
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Section 6. This Agreement shall be effective as of the date hereof and,
except as set forth herein, the Equity Investment Agreement shall remain in full
force and effect and be otherwise unaffected hereby.
Section 7. Each party to this Agreement agrees to execute, acknowledge,
deliver, file and record such further certificates, amendments, instruments and
documents, and to do all such other acts and things, as may be required by law
or as may be necessary or advisable to carry out the intent and purpose of this
Agreement.
Section 8. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
Section 9. THE COMPANY AND THE PURCHASER EACH HEREBY WAIVES TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT AND ANY RIGHT ARISING HEREUNDER.
Section 10. Every provision of this Agreement is intended to be
severable. The invalidity and unenforceability of any particular provision of
this Agreement in any jurisdiction shall not affect the other provisions hereof,
and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
Section 11. This Agreement shall be binding upon the parties hereto and
their respective successors, executors, administrators, legal representatives,
heirs and legal assigns and shall inure to the benefit of the parties hereto
and, except as otherwise provided herein, their respective successors,
executors, administrators, legal representatives, heirs and legal assigns. No
person other than the parties hereto and their respective successors, executors,
administrators, legal representatives, heirs and legal assigns, shall have any
rights or claims under this Agreement.
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In witness whereof, the undersigned have signed this Agreement as of
the date first above written.
MIRAVANT MEDICAL TECHNOLOGIES
By: /s/ Xxxx X. Xxxxxxx
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Title: Chief Executive Officer
PHARMACIA & UPJOHN, INC.
By: /s/ Mats Pettersson
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Title: Senior Vice President
PHARMACIA & UPJOHN S.p.A.
By: /s/ Mats Pettersson
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Title: Attorney-In-Fact
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