EXHIBIT D
EQUITY INVESTMENT AGREEMENT
EQUITY INVESTMENT AGREEMENT (this "Agreement"), dated as of January 15,
1999, between Miravant Medical Technologies, a Delaware corporation (the
"Company"), Pharmacia & Upjohn, Inc., a Delaware corporation (the "Purchaser"),
and Pharmacia & Upjohn, S.p.A., an Italian corporation.
W I T N E S S E T H :
WHEREAS, the Company and Affiliates of the Purchaser are parties to the
Restated and Amended Development and License Agreement, dated June 8, 1998,
between Pharmacia & Upjohn S.p.A. and the Company (the "Oncology License
Agreement"), and the Amended and Restated Ophthalmology Development and License
Agreement, dated June 8, 1998, between Pharmacia & Upjohn AB and the Company
(the "Ophthalmology License Agreement" and, together with the Oncology License
Agreement, the "License Agreements"), and the parties desire to amend such
License Agreements in certain respects, as contemplated herein; and
WHEREAS, certain subsidiaries of the Purchaser are the record owners of
shares of Common Stock (as hereinafter defined), and the Purchaser wishes to
acquire additional shares of Common Stock, all on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
Definitions
===========
Section 1.01. Terms Generally. The definitions ascribed to terms in
this Agreement apply equally to both the singular and plural forms of such
terms. Whenever the context may require, any pronoun shall be deemed to include
the corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be interpreted as if followed by the phrase
"without limitation". All references herein to the Preamble, Recitals, Articles,
Sections and Schedules shall be deemed references to the
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Preamble and Recitals, Articles and Sections of, and Schedules to, this
Agreement unless the context shall otherwise require. The headings and captions
herein shall not be given effect in interpreting or construing the provisions of
this Agreement. Except as otherwise expressly provided herein, all references to
"dollars" or "$" shall be deemed references to the lawful money of the United
States of America.
Section 1.02. Definitions. The following terms have the meanings
ascribed to them below:
"Act" has the meaning assigned to such term in Section 6.03.
"Affiliate" means any other Person directly or indirectly controlling,
controlled by, or under common control with, that Person.
"Agreement" has the meaning assigned to such term in the preamble
hereto.
"Amending Agreement" has the meaning assigned to such term specified in
Section 7.01.
"Associate" has the meaning ascribed to such term in Rule 12b-2 under
the 1934 Act.
"Audited Financial Statements" has the meaning assigned to such term in
Section 4.10.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in The City of New York or in Los Angeles,
California, are authorized by law to close.
"Certificate of Incorporation" means the Restated Certificate of
Incorporation of the Company as in effect on the Closing Date.
"Closing" has the meaning assigned to such term in
Section 3.02.
"Closing Date" has the meaning assigned to such term in Section 3.02.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" means the common stock, $.01 par value, of the Company.
"Company" has the meaning assigned to such term in the Preamble.
"Control," "controlled by" or "under common control with" means direct
or indirect possession of the power to direct or cause the direction of
management or policies (whether through ownership of voting securities, by
contract or otherwise); provided that control shall be conclusively presumed
when any Person directly or indirectly owns a majority of the securities having
ordinary voting power for the election of a majority of the directors of a
corporation.
"Credit Agreement" has the meaning assigned to such term in Section
7.01.
"Disclosure Package" has the meaning assigned to such term in Section
4.09(a).
"Employee Benefit Plan" has the meaning assigned to such term in
Section 4.18.
"Environmental Law" has the meaning assigned to such term in Section
4.22.
"Environmental Property" has the meaning assigned to such term in
Section 4.22.
"FDA" has the meaning assigned to such term in Section 4.24.
"Hazardous Materials" has the meaning assigned to such term in Section
4.22.
"Intellectual Property Rights" has the meaning assigned to such term in
Section 4.14.
"License Agreements" has the meaning assigned to such term in the first
Recital.
"Licenses and Permits" means all governmental and private permits,
licenses, certificates of occupancy, franchises and authorizations required to
conduct the business of the Company and its Subsidiaries with operations and
products substantially the same as those of the Company
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immediately prior to the consummation of the transaction contemplated hereby or
as now contemplated.
"Loss" means any loss, claim, damages, or liability.
"Oncology License Agreement" has the meaning assigned to such term in
the first Recital.
"Ophthalmology License Agreement" has the meaning assigned to such term
in the first Recital.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
"Product Intellectual Property" has the meaning assigned to such term
in Section 4.13.
"Purchase Price" has the meaning assigned to such term in Section 3.01.
"Purchaser" has the meaning assigned to such term in the Preamble.
"Registration Rights Agreement" has the meaning assigned to such term
in Section 7.01.
"Securities" has the meaning assigned to such term in Section 3.01.
"Security Agreement" has the meaning specified in Section 7.01.
"Subsidiary" means any corporation, association or other business
entity of which more than 50% of the total voting power or shares of stock
entitled to vote in the election of directors, managers or trustees thereof is
at the time owned or controlled, directly or indirectly, by the Company or one
or more of the other Subsidiaries of the Company or a combination thereof.
"Warrant Agreement" has the meaning assigned to such term in Section
7.01.
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"1933 Act" means the Securities Act of 1933, as amended and as it may
be amended from time to time, including the rules and regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended and as
it may be amended from time to time, including the rules and regulations
thereunder.
ARTICLE II
Amendments to the License Agreements
Section 2.01. Amendment to the Oncology License Agreement. The Oncology
License Agreement is hereby amended ab initio, effective as of the Closing Date,
to delete therefrom Section 3.04 thereof in its entirety.
Section 2.02. Amendment to Ophthalmology License Agreement. When
executed and delivered as contemplated hereby, the Amending Agreement will amend
the Ophthalmology License Agreement in certain respects, all as set forth in the
Amending Agreement.
ARTICLE III
Equity Investment
Section 3.01. Issuance, Sale and Delivery of the Securities. The
Company hereby agrees, subject to the prior satisfaction or waiver in writing by
the Company of the conditions specified in Section 7.02, to issue and sell to
the Purchaser, and the Purchaser hereby agrees, subject to the prior
satisfaction or waiver in writing by the Purchaser of the conditions specified
in Section 7.01, to purchase from the Company, 1,136,533 shares of Common Stock
(the "Securities") for an aggregate purchase price equal to $19,000,000 (the
"Purchase Price").
Section 3.02. Closing. The consummation of the stock purchase
transaction contemplated by Section 3.01 shall take place at Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York
time, on the fifth day following the satisfaction or waiver by the Purchaser in
writing of the last to be satisfied or so waived of the conditions set forth in
Article VII, or at such other
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location, date and time as may be agreed upon between the Purchaser and the
Company (such consummation being called the "Closing" and such date and time
being called the "Closing Date"). At the Closing, (a) the Company shall deliver,
issue and sell to the Purchaser a stock certificate or certificates in the name
of the Purchaser or any Affiliate of the Purchaser designated to the Company by
the Purchaser, representing the Securities, and (b) the Purchaser shall pay the
Purchase Price by wire transfer or certified or bank cashier's check in same day
funds.
ARTICLE IV
Representations and Warranties of the Company
The Company hereby makes the following representations and warranties
which shall survive the execution and delivery of this Agreement and the
issuance, delivery and sale of the Securities pursuant hereto:
Section 4.01. Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is duly qualified to do business in California.
Neither the Company nor any of its stockholders has adopted or taken any action
in contemplation of any plan of liquidation or dissolution of the Company. The
Company has provided the Purchaser with true, complete and correct copies of the
Certificate of Incorporation and Bylaws of the Company as in effect on the date
hereof.
Section 4.02. Corporate Power of the Company. The Company has the
requisite corporate power and authority to execute, deliver and carry out this
Agreement and all other instruments, documents and agreements contemplated or
required by the provisions of this Agreement to be executed, delivered or
carried out by the Company. The Company has all requisite corporate power and
authority under the laws of the jurisdiction of its incorporation to own and
operate its properties and to carry on its business as now conducted and as
presently proposed to be conducted. The Board of Directors and stockholders of
the Company have taken all necessary corporate action to approve this Agreement
and to authorize the execution, delivery and performance of this Agreement by
the Company, the issuance by the Company of the Securities and the consummation
of the transactions contemplated hereby.
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This Agreement has been duly properly executed and delivered by the Company and
constitutes the legally valid and binding obligation of the Company enforceable
against it in accordance with its terms.
Section 4.03. No Conflict. Except as set forth in Schedule 4.03, none
of (a) the approval by the Board of Directors and stockholders of the Company of
this Agreement, (b) the execution or the delivery by the Company of this
Agreement or the performance by the Company of its obligations hereunder or the
consummation of the transactions contemplated hereby or (c) the issuance by the
Company of the Securities will (A) conflict with or result in any violation or
constitute a default under the Certificate of Incorporation or Bylaws of the
Company or any agreement, mortgage, indenture, franchise, license, permit,
authorization, lease or other instrument, or any judgment, decree, order, law or
regulation by which the Company or any of its properties or assets is bound, or
(B) result in the creation or imposition of any lien, security interest, charge,
encumbrance, restriction or claim of any nature upon, or give to others any
interest or right, including any right of termination or cancellation, in or
with respect to, or otherwise adversely affect, any property, asset or business
of the Company, or (C) require the Company to obtain or make any consent,
authorization, approval, registration, declaration or filing under any statute,
law, ordinance, regulation, rule, judgment, decree or order of any court or any
governmental agency, board, bureau, body, department or authority of any United
States or foreign jurisdiction, except those which have been completed at the
date of this Agreement, or (D) conflict with any other restriction of any kind
or character to which the Company is subject or to which any of its properties
is bound.
Section 4.04. Subsidiaries. The Company has three Subsidiaries,
Miravant Cardiovascular, Inc., a Delaware corporation, Miravant Pharmaceuticals,
Inc., a Delaware corporation, and Miravant Systems, Inc., a California
corporation. Each Subsidiary is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate power and authority to carry on its business as now conducted and as
presently proposed to be conducted. All of the outstanding capital stock of the
Company's Subsidiaries is validly issued, fully paid and nonassessable and owned
by the Company free and clear of any lien, pledge or other encumbrance. Other
than the three Subsidiaries, the Company does not own any
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securities or other ownership interests in any other Person which would entitle
the Company to control such Person.
Section 4.05. Capitalization.
(a) Authorized Shares. The authorized capital of the Company consists
of 50,000,000 shares of Common Stock and 20,000,000 shares of preferred stock,
of which 500,000 shares have been designated Series A Preferred Stock. The
Company holds no shares of its capital stock in its treasury. Except as set
forth in Schedule 4.05(a) and except as disclosed in the Disclosure Package, no
Person has any agreement, subscription, option or warrant or any other right or
commitment entitling such Person to acquire from the Company any shares of the
Company's capital stock or any other securities or other instruments convertible
into or exchangeable for any such shares.
(b) Outstanding Shares. At the Closing, no more than 17,200,000 shares
of capital stock of the Company will be issued and outstanding. All of the
Securities when issued, sold and delivered in accordance with the terms hereof
and for the consideration expressed herein, will have been duly authorized and
validly issued, fully paid and non-assessable and free of any liens or
encumbrances. The issuance of the Securities will not violate any preemptive or
other rights and will be in compliance with applicable federal and state
securities laws and regulations. The Company has no obligations or agreements
concerning the repurchase of any of the shares of its outstanding capital stock.
Section 4.06. Corporate Record Keeping. The corporate record and stock
transfer books of the Company and each of its Subsidiaries are complete,
accurate and up-to-date with all necessary signatures and set forth all meetings
and actions taken by the respective incorporators, stockholders and directors of
each such party.
Section 4.07. Compliance With Laws. The Company and each of its
Subsidiaries is in compliance in all material respects with all federal, state,
local and foreign statutes, laws, ordinances, regulations, rules, judgments,
orders and decrees applicable to it or its respective assets, properties,
business or operations.
Section 4.08. Licenses and Permits. The Company is not aware of any
fact which has not been disclosed to the
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Purchaser which could adversely affect the ability of the Company to obtain or
maintain the Licenses and Permits (or any consent required to be obtained with
respect thereto as a result of the transactions contemplated hereby) after
consummation of the transactions contemplated hereby on the same terms as such
Licenses and Permits were held by the Company immediately prior to the
consummation of the transactions contemplated hereby.
Section 4.09. Disclosure.
(a) The Company has delivered to the Purchaser copies of the filings
made by the Company with the Commission since December 31, 1995 and prior to the
date hereof and the press releases issued by the Company since September 30,
1998 and prior to the date hereof (such filings and press releases collectively,
the "Disclosure Package").
(b) To the Company's knowledge, none of such statements, forms or
reports (including, without limitation, any financial statements, exhibits and
schedules included therein and documents incorporated therein by reference), as
amended or supplemented, if applicable, at the time filed, declared effective or
mailed, as the case may be, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) This Agreement and all of the Schedules delivered to the Purchaser
in connection herewith, when read together with the Disclosure Package, do not
contain any statement that is false or misleading with respect to any material
fact and do not omit to state a material fact necessary in order to make the
statements therein not false or misleading. There is no additional fact of which
the Company is aware that has not disclosed in writing to the Purchaser that in
the opinion or belief of the Company materially and adversely affects, or so far
as the Company can now reasonably foresee will materially and adversely affect,
the properties, business or condition (financial or otherwise) of the Company or
any Subsidiary.
Section 4.10. Financial Statements. The Company has furnished to the
Purchaser a true and complete copy of its audited consolidated balance sheet as
of December 31, 1997 and an audited consolidated statement of income and
retained earnings for the year then ended (the "Audited Financial
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Statements"). Except as disclosed in the Disclosure Package, the Audited
Financial Statements have been prepared in accordance with generally accepted
accounting principles on a basis consistent with prior periods and fairly
present the financial condition and results of operations and changes in the
financial condition of the Company and the Subsidiaries as of the dates thereof,
and for the periods indicated, subject to all normal adjustments. For purposes
of this Agreement, all references to "Audited Financial Statements" include any
notes to such statements.
Section 4.11. Litigation. There is no material suit, action,
arbitration or legal, administrative or other proceeding or pending
investigation to which the Company or any Subsidiary is a party or, to the
Company's knowledge, is threatened against the Company, or any of its
Subsidiaries or their businesses, assets or financial condition. Except as set
forth in Schedule 4.11, the Company has no knowledge of any governmental
investigation against the Company or its Subsidiaries, other than routine
government contract audits. To the best of the Company's knowledge, neither the
Company nor any of its Subsidiaries is in violation or infringement of any
intellectual property right, or registrations or applications therefor, of any
other person.
Section 4.12. Conflict of Interest. Except as disclosed in the
Disclosure Package, all purchasing transactions relating to the Company and its
Subsidiaries have been at market prices since inception. No officer or director
of the Company or any Affiliate of any such person has or within the last year
has had, either directly or indirectly:
(a) an equity or debt interest in any corporation, partnership, joint
venture, association, organization or other Person which furnishes or sells or
during such period furnished or sold services or products to the Company or the
Subsidiaries, or purchases or during such period purchased from the Company or
the Subsidiaries any goods or services, or otherwise does or during such period
did business with the Company or the Subsidiaries; or
(b) a beneficial interest in any contract, commitment or agreement to
which the Company or the Subsidiaries is or was a party or under which it was
obligated or bound or to which its properties may be or may have been subject,
other than stock options and other contracts, commitments or agreements between
the Company or the
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Subsidiaries and such persons in their capacities as employees, independent
contractors, officers or directors of the Company or the Subsidiaries.
Section 4.13. License Agreements and Product Intellectual Property. The
representations and warranties made by the Company in the License Agreements are
true and correct. The Company has no actual knowledge of any suit, claims or
proceedings pending or threatened with respect to the rights in the intellectual
property owned by or licensed to the Company (the "Product Intellectual
Property"). 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 the
licenses for the Product Intellectual Property provided for in the License
Agreements.
Section 4.14. Intellectual Property Rights.
(a) To the Company's knowledge and except as disclosed in the
Disclosure Package: the Company and its Subsidiaries have good and marketable
title to and own their inventions, licenses, patents, trade secrets or other
proprietary know-how (the "Intellectual Property Rights") free and clear of all
mortgages, liens, loans and encumbrances, except such encumbrances and liens
which arise in the ordinary course of business and do not materially impair the
Company's or its Subsidiaries' ownership or use of the Intellectual Property
Rights or materially detract from the value thereof; no proceedings have been
instituted or are pending which challenge the Company's or its Subsidiaries'
rights to the Intellectual Property Rights or the validity thereof; all material
rights or inventions conceived by any employee or consultant of the Company or
its Subsidiaries during the scope of their services for the Company or its
Subsidiaries have been disclosed and effectively assigned to the Company or its
Subsidiaries; and with respect to the Intellectual Property Rights licensed by
the Company and its Subsidiaries, such licenses are in full force and effect,
the Company and its Subsidiaries are in compliance with the terms and provisions
thereof, and no event has occurred which, with notice or lapse of time or both,
would constitute a breach or violation thereof which could have a material
adverse effect on the financial condition, business or properties of the Company
and its Subsidiaries taken as a whole, and the Company and its
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Subsidiaries hold a valid license free of any liens, claims or encumbrances
which do not and will not, individually or in the aggregate, have a material
adverse effect on the financial condition, business or properties of the Company
and its Subsidiaries taken as a whole.
(b) To the Company's knowledge, the Company and its Subsidiaries have
the right and authority to use the Intellectual Property Rights in connection
with the conduct of the business of the Company and its Subsidiaries in the
manner and to the extent such business is presently conducted and as it is
proposed to be conducted, and the Company and its Subsidiaries have not been
notified of any claim that such use conflicts with, infringes upon or violates
any rights of any other Person, except to the extent that such conflict,
infringement or violation does not and will not, individually or in the
aggregate, have a material adverse effect.
Section 4.15. Material Contracts. Except as set forth on Schedule 4.15
and except as disclosed in the Disclosure Package, there are no material
agreements, undertakings, instruments, contracts or proposed transactions to
which the Company or any of the Subsidiaries is a party or by which it is bound
which involve an option, license or agreement of any kind with respect to the
Intellectual Property Rights of the Company or its Subsidiaries, or the
prohibition or limitation of the Company's or any of its Subsidiaries' ability
to engage in their respective businesses or any other business or to compete
with any Person.
Section 4.16. No Undisclosed Liabilities. Except as disclosed in the
Disclosure Package, there are no liabilities or obligations of any nature,
whether absolute, accrued, contingent or otherwise, and whether due or to become
due (including, without limitation, any liability for taxes and interest,
penalties and other charges payable with respect to any such liability or
obligations) which individually or in the aggregate are material to the
condition (financial or otherwise) of the Company, or prospects of the Company,
which are not disclosed in the Audited Financial Statements, or incurred in the
ordinary course of business subsequent to the latest of the Audited Financial
Statements.
Section 4.17. Changes. Except as disclosed in the Disclosure Package
and except as set forth in Schedule 4.17 or disclosed elsewhere in this
Agreement since December 31, 1997, except as filed with the Commission, there
has not been:
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(a) any material change in the assets, liabilities (contingent or
otherwise), obligations, condition (financial or otherwise) or operating results
of the Company or any of the Subsidiaries, except operating losses and changes
in the ordinary course of business from that reflected in the Audited Financial
Statements or subsequent financial statements filed with the Commission;
(b) any material waiver by the Company and its Subsidiaries of a
valuable right which is material to the Company's and its Subsidiaries' business
or of a material debt owed to it;
(c) any satisfaction or discharge of any lien, claim or encumbrance or
payment of any obligation by the Company and its Subsidiaries, except in the
ordinary course of business and which is not material to the assets, properties,
financial condition, operating results, prospects or business of the Company and
its Subsidiaries (as such business is presently conducted and as it is planned
to be conducted);
(d) any material change or amendment to a material contract or
arrangement by which the Company and its Subsidiaries or any of its assets or
properties is bound or subject; or
(e) any other material adverse change in the business or prospects of
the Company and its Subsidiaries (as such business is presently conducted or
planned to be conducted).
Section 4.18. Employee Benefit Plans. No prohibited transaction (as
defined under Section 4975 of the Internal Revenue Code of 1986, as amended) has
occurred. The Company has received a favorable determination of qualification
from the Internal Revenue Service for each employee benefit plan (as defined in
Section 3(3) of ERISA)("Employee Benefit Plan") in which employees of the
Company or the Subsidiaries participate. The financial statements of the Company
accurately reflect all liabilities owed by the Company to past and present
employees or their beneficiaries arising out of such employees' employment with
the Company pursuant to such Employee Benefit Plans. All amounts required under
the terms of any Employee Benefit Plan to have been paid or accrued as
contributions to such Employee Benefit Plan by the Company as of the last day of
the most
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recent fiscal year of such Plan ended on or before the date of this Agreement
have been paid or accrued.
Section 4.19. Employee Relations. The Company is not bound by or
subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the knowledge of the
Company, sought to represent any of the employees, representatives or agents of
the Company or any of its Subsidiaries. There is no strike or other labor
dispute involving the Company or any of its Subsidiaries pending, or to the
knowledge of the Company threatened, which could have a material adverse effect
on the assets, properties, financial condition, prospects or business (as now
conducted or as proposed to be conducted) of the Company, nor is the Company
aware of any labor organization activity involving its or its Subsidiaries'
employees. The Company is not aware that any officer or key employee intends to
terminate his or her employment with the Company or any of its Subsidiaries, nor
does the Company intend to terminate the employment of any such person. The
Company believes its relations with its employees are satisfactory.
Section 4.20. Taxes. All required foreign, federal, state and local tax
returns, notices and reports of the Company and its Subsidiaries have been
accurately prepared and duly and timely filed, and all foreign, federal, state,
local and other taxes required to be paid with respect to the periods covered by
such returns have been paid, except such returns and taxes with respect to which
the failure to pay or file would not have a material adverse effect. The Company
has never had any tax deficiency proposed or assessed against it which would
have a material adverse effect, has not executed any waiver or extension of any
statute of limitations on the assessment or collection of any taxes which would
have a material adverse effect and none of the Company's federal or state tax
returns has ever been audited by governmental authorities. No tax audit, action,
suit, proceeding, investigation, examination or claim is now pending or, to the
Company's knowledge, threatened against the Company, and no issue or question
has been communicated to the Company (and is currently pending) by any taxing
authority in connection with any of the Company's tax returns or reports.
Section 4.21. Use of Proceeds. The proceeds of the sale of the
Securities to the Purchaser hereunder shall be
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used by the Company for working capital and other general corporate purposes.
Section 4.22. Environmental Matters. To the Company's best knowledge
after reasonable inquiry:
(a) all assets and property currently or previously owned, leased,
operated or used by the Company or any of the Subsidiaries in connection with
their businesses ("Environmental Property"), all current and previous conditions
on and uses of the Environmental Property and all current and previous ownership
and operations of the Environmental Property and the Company and the
Subsidiaries (including, without limitation, transportation and disposal of
Hazardous Materials by or for the Company or the Subsidiaries) comply, have at
all times complied, and will comply with, and do not cause, and have not caused,
liability to be incurred by the Company or the Subsidiaries under any current or
past federal or state law relating to the protection of health or the
environment, including, without limitation, the common law, including the law of
nuisance and strict liability ("Environmental Law") except where non-compliance
has had and will have no material adverse effect; and neither the Company nor
any of the Subsidiaries is in violation of and has not violated any
Environmental Law which violation has had or will have a material adverse
effect;
(b) the Company has properly obtained and is in compliance with all
necessary permits, registrations, approvals and licenses, and has properly made
all filings with and submissions to any government or other authority, required
by any Environmental Law the failure of which to obtain, comply with or make
would have a material adverse effect. No deficiencies have been asserted by any
such government or authority with respect to such items which deficiencies have
had or will have a material adverse effect; and
(c) there has been no spill, discharge, leak, leaching, emission,
migration, injection, disposal, escape, dumping or release of any kind on,
beneath, above or into the Environmental Property or into the environment
surrounding the Environmental Property of any (i) pollutants or contaminants,
other than automobile emissions, (ii) hazardous, toxic, infectious or
radioactive substances, chemicals, materials or wastes (including, without
limitation, those defined as hazardous under any Environmental Law), (iii)
petroleum including crude oil or any derivative or fraction thereof,
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(iv) asbestos fibers, other than contained in automobile brake linings or (v)
solid wastes ((i)-(v) collectively, "Hazardous Materials") which have had or
will have a material adverse effect.
Section 4.23. Registration Rights; Voting Trust Agreements. Except as
described in the Disclosure Package, the Company is not a party to any contract
or commitment which requires the Company to register (now or in the future,
whether contingent or not) under the 1933 Act any of its capital stock. The
Company is not a party to, nor aware of, any stockholder agreements, voting
trusts, proxies or other agreements or understandings with respect to the voting
of any of the capital stock of the Company.
Section 4.24. FDA Matters. Except as disclosed to the Purchaser in
writing, there are no applications or other proceedings presently pending before
the United States Food and Drug Administration (the "FDA"). The FDA has not
delivered a letter of non-approval or threatened to deliver such a letter with
respect to any product manufactured, marketed, licensed or developed by the
Company or any Subsidiary, or any product which the Company or its Subsidiaries
intend to manufacture, market, license or develop.
Section 4.25. Warranties and Representations. All of the foregoing
representations and warranties will survive for a period of one year from the
Closing Date.
ARTICLE V
Covenants
The Company covenants and agrees that so long as the Purchaser and its
Affiliates own more than 5% of the outstanding shares of Common Stock of the
Company, unless the Purchaser shall otherwise consent in writing, it will:
Section 5.01. Financial Information. Furnish or cause to be furnished
to the Purchaser the following financial statements and information, which shall
be prepared on a substantially consistent basis:
(a) As soon as available but in any event within 100 days after the
close of each fiscal year of the Company,
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audited consolidated balance sheets of the Company and of each of its
Subsidiaries as of the close of such fiscal year, and audited consolidated
statements of income, stockholders' equity and cash flow of the Company and each
of its Subsidiaries for such fiscal year, prepared in accordance with generally
accepted accounting principles, setting forth, in the case of each consolidated
balance sheet and consolidated statement, in comparative form, corresponding
figures for the preceding fiscal year, together with copies of the reports and
certificates relating thereto, including an opinion of Ernst & Young LLP or
other independent certified public accountants of recognized national standing
selected by the Company. The Company and the Purchaser agree that so long as the
Company is subject to the reporting obligations of Section 13 of the 1934 Act
pursuant to Section 12(b) or 12(g) of the 1934 Act, the Company's Annual Report
on Form 10-K shall satisfy the requirements of this Section 5.01(a).
(b) As soon as available but in any event within 60 days after the end
of each fiscal quarter of the Company (i) a consolidated balance sheet of the
Company and its Subsidiaries as of the last day of such fiscal quarter and
consolidated statements of income and cash flow of the Company and each of its
Subsidiaries for such quarter and for the period from the beginning of the then
current fiscal year to the end of such quarter, setting forth in comparative
form corresponding figures for the same quarter and period in the preceding
fiscal year and for the same quarter and period in the current year and (ii) a
consolidating balance sheet for the Company and each of its Subsidiaries as of
the close of such quarter and consolidating statements of earnings and cash flow
for the Company and each of its Subsidiaries for such quarter and for the period
from the beginning of the then current fiscal year to the end of such quarter,
each balance sheet and statement of earnings and cash flow referred to in this
Section to be certified by the principal financial officer of the Company,
provided that any such certificate may state that the accompanying balance sheet
and statements are subject to normal year-end adjustments based on year-end
audit. The Company and the Purchaser agree that so long as the Company is
subject to the reporting obligations of Section 13 of the 1934 Act pursuant to
Section 12(b) or 12(g) of the 1934 Act, the Company's Quarterly Report on Form
10-Q shall satisfy the requirements of this Section 5.01(b).
(c) From time to time, with reasonable promptness, such additional
financial statements and information with
-17-
respect to the financial condition of the Company and of its Subsidiaries as the
Purchaser may reasonably request, including, without limitation and without
further request, any financial statements or reports (including comment letters
to management) furnished to the Company or any Subsidiary by its independent
certified public accountants, any and all registration statements, proxy
statements and periodic reports filed by the Company or any Subsidiary with the
Commission pursuant to the 1933 Act or the 1934 Act, and all material press
releases issued by or on behalf of the Company or any Subsidiary.
Section 5.02. Access to Information. Provide such information
concerning the operations of the Company and its Subsidiaries as the Purchaser
may from time to time reasonably request in writing, and upon reasonable advance
notice permit representatives of the Purchaser full and free access during
normal business hours to the properties, books and records of the Company and
its Subsidiaries; provided that the Company shall not be required to disclose
any confidential information or information held as a trade secret, and to
discuss the affairs, accounts and finances of the Company or any of its
Subsidiaries with the financial and management personnel of the Company and its
Subsidiaries and with their independent certified public accountants.
Section 5.03. Board of Directors' Meetings. The Purchaser shall receive
notices of any and all Board of Directors' meetings in accordance with the
Bylaws of the Company and shall be entitled to attend, as an observer, all such
Board of Directors' meetings. In addition, the Company will provide the
Purchaser with copies of any written consents of the Board of Directors at the
time they are signed by the Board of Directors.
Section 5.04. Rule 144. The Company agrees to make and keep public
information regarding the Company available as those terms are understood and
defined in Rule 144 promulgated under the 1933 Act, at all times following the
date of the Company's initial public offering, and to file with the Commission
in a timely manner all reports and other documents required of the Company under
the 1933 Act and the 1934 Act, at any time that it is subject to such reporting
requirements.
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ARTICLE VI
Representations, Warranties and Covenants of the Purchaser;
Transfer of Securities
Section 6.01. Representations of the Purchaser. The Purchaser hereby
represents and warrants to the Company as follows:
(a) The Purchaser is a corporation organized under the laws of Delaware
having its principal place of business in Bridgewater, New Jersey.
(b) The Purchaser has the requisite corporate power and authority to
execute, deliver and carry out this Agreement and all other instruments,
documents and agreements contemplated or required by the provisions of this
Agreement to be executed, delivered or carried out by the Purchaser. This
Agreement constitutes the legally valid and binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms.
(c) The Purchaser is an "accredited investor" within the meaning of
Regulation D under the 1933 Act, and is acquiring the Securities for investment
for its own account, and not with a view to distribution subject, nevertheless,
to any requirement of law that the disposition of its property shall at all
times be within its control. The Purchaser has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of purchasing the Securities. The Purchaser is aware that it may be
required to bear the economic risk of an investment in the Securities for an
indefinite period, and it is able to bear such risk for an indefinite period.
The Purchaser acknowledges (a) that the Securities being acquired by it are not
being registered under the 1933 Act on the grounds that the issuance of such
securities is exempt from registration under Section 4(2) of the 1933 Act as not
involving any public offering, and (b) that the Company's reliance on such
exemption is predicated in part on the representations made to the Company by
the Purchaser in this Section 6.01.
Section 6.02. Transfer of Securities. The Purchaser will not sell,
assign or transfer all or any part of the Securities acquired by it except as
follows:
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(a) The Securities or any part thereof or interest therein may be
assigned or transferred to an Affiliate of the Purchaser for its own account or
in connection with a sale of the Purchaser or its portfolio assets; provided
that such assignment or transfer is made in compliance with applicable
securities laws.
(b) The Securities or any part thereof or interest therein may be
assigned or transferred if such transfer is determined by the Purchaser and its
counsel, which may be in-house counsel to the Purchaser, to be necessary in
order to comply with applicable laws, rules or regulations; provided that such
assignment or transfer is made in compliance with applicable securities laws.
(c) The Securities or any part thereof or interest therein may be
assigned or transferred to any other Person or Persons; provided that the
Purchaser shall have furnished to the Company, if reasonably requested to do so,
either (i) an opinion, reasonably satisfactory to counsel for the Company, of
counsel skilled in securities matters (selected by the Purchaser and reasonably
satisfactory to the Company, it being understood and agreed that Xxxxxxxx &
Xxxxxxxx is and will be reasonably satisfactory to the Company) to the effect
that the proposed sale or transfer may be made without registration under the
1933 Act, or (ii) an interpretive letter from the Commission to the effect that
no enforcement action will be recommended if the proposed sale or transfer is
made without registration under the 1933 Act, in either case accompanied by
evidence reasonably satisfactory to the Company that such transfer will be in
compliance with applicable state securities ("blue sky") laws; provided,
however, that the foregoing proviso shall not apply with respect to any transfer
pursuant to an effective registration statement under the 1933 Act.
Upon the assignment or transfer by the Purchaser of all or any part of
the Securities or its interest therein pursuant to paragraphs (a), (b) or (c)
above, the term "the Purchaser", as used herein, shall thereafter include, to
the extent of the interest so assigned or transferred, the assignee or
transferee of such interest provided, however, that the foregoing shall not
apply with respect to any transfer pursuant to an effective registration
statement under the 1933 Act.
-20-
Section 6.03. Private Placement; Legends. The Purchaser acknowledges
and agrees that the Securities have not been registered under the 1933 Act and
may not be offered or sold in the United States or to U.S. persons (as defined
in Regulation S) unless the Securities are registered under the 1933 Act, or an
exemption from the registration requirements of the 1933 Act is available. Each
certificate evidencing any Securities shall bear a legend in substantially the
following form:
The securities represented by this certificate are subject to
an Equity Investment Agreement, dated January 15, 1999, a
copy of which is on file at the principal office of the
Company and will be furnished to the holder on request to the
Secretary of the Company. Such Equity Investment Agreement
provides, among other things, for certain restrictions on
sale, transfer, pledge, hypothecation or other disposition of
the securities evidenced by this certificate.
In addition, unless counsel to the Company shall have advised the Company
that such legend is no longer needed, each certificate evidencing the Securities
shall bear a legend in substantially the following form:
The securities represented by this certificate have not been
registered pursuant to the Securities Act of 1933, as amended
(the "Act"), or any state securities law, and such securities
may not be sold, transferred or otherwise disposed of unless
the same are registered and qualified in accordance with the
Act and any applicable state securities laws, or in the
opinion of counsel reasonably satisfactory to the Company
such registration and qualification are not required.
The Purchaser shall have the right to request that the Company remove such
legends if the conditions of Rule 144 of the 1933 Act have been satisfied with
respect to the Securities evidenced by such certificate, or if such Securities
are otherwise registered in accordance with the 1933 Act or another exemption
from such registration is available, and the Company shall fully cooperate with
the Purchaser if any of the foregoing conditions are satisfied; provided in each
case other than registration under the 1933 Act that the Purchaser shall have
furnished to the Company, if
-21-
reasonably requested to do so, an opinion or interpretive letter and such other
evidence as is referenced in Section 6.02(c) for a transfer of such Securities.
ARTICLE VII
Conditions to Closing
Section 7.01. Conditions to the Purchaser's Obligations. The obligation
of the Purchaser to purchase the Securities is subject to the prior satisfaction
or waiver in writing by the Purchaser of all of the following conditions:
(a) The representations and warranties of the Company contained in
Article IV shall be true in all material respects as of the Closing Date as
though made at and as of the Closing Date.
(b) The Company shall have performed, in all material respects, all
covenants, agreements and obligations required to be performed by it on or prior
to the Closing Date pursuant to this Agreement.
(c) A Credit Agreement in the form attached hereto as Exhibit A (the
"Credit Agreement"), a Warrant Agreement in the form attached hereto as Exhibit
B (the "Warrant Agreement"), a Security Agreement in the form attached hereto as
Exhibit C (the "Security Agreement"), a Registration Rights Agreement in the
form attached hereto as Exhibit D (the "Registration Rights Agreement") and an
Amended and Restated Ophthalmology Development & License Agreement in the form
attached hereto as Exhibit E (the "Amending Agreement") shall have been duly
executed and delivered by the parties thereto.
(d) The Purchaser shall have received the opinion of Nida & Xxxxxxx PC
in the form attached hereto as Exhibit F.
(e) On or prior to the Closing Date, the Company shall tender to the
Purchaser certificate(s) representing the Securities.
(f) The Company and the Purchaser shall have obtained all necessary
authorizations, consents or approvals or other orders or actions necessary or
appropriate for the consummation of the transactions contemplated by this
Agreement, and the Company and the Purchaser shall have made all necessary
filings with any court, administrative agency, or other governmental or
regulatory
-22-
body or authority required for the execution and delivery by the Company and
the Purchaser of this Agreement or the Company's and the Purchaser's
consummation of the transactions contemplated hereby.
(g) No action, suit, proceeding or investigation by or before any
court, administrative agency or other governmental authority shall have been
instituted or threatened which may restrain, prohibit or invalidate any of the
transactions contemplated by this Agreement.
(h) The waiting period (including any extension thereof) applicable to
the Purchaser's acquisition of the Securities pursuant to this Agreement under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, shall have
expired or been terminated, and the Purchaser shall have received evidence
thereof satisfactory to the Purchaser.
Section 7.02. Conditions to the Company's Obligations. The obligation
of the Company to issue, deliver and sell the Securities is subject to the prior
satisfaction or waiver in writing by the Company of all of the following
conditions:
(a) The representations and warranties of the Purchaser contained in
Section 6.01 shall be true in all material respects as of the Closing Date as
though made at and as of the Closing Date.
(b) The Purchaser shall have performed, in all material respects, all
covenants, agreements and obligations required to be performed by it on or prior
to the Closing Date pursuant to this Agreement.
(c) The Credit Agreement, Warrant Agreement, Security Agreement,
Registration Rights Agreement and Amending Agreement shall have been duly
executed and delivered by the parties thereto.
(d) On the Closing Date, the Purchaser shall tender to the Company the
Purchase Price.
(e) The Company and the Purchaser shall have obtained all necessary
authorizations, consents or approvals or other orders or actions necessary or
appropriate for the consummation of the transactions contemplated by this
Agreement, and the Company and the Purchaser shall have made all necessary
filings with any court, administrative agency, or other governmental or
regulatory
-23-
body or authority required for the execution and delivery by the Company and the
Purchaser of this Agreement or the Company's and the Purchaser's consummation of
the transactions contemplated hereby.
(f) No action, suit, proceeding or investigation by or before any
court, administrative agency or other governmental authority shall have been
instituted or threatened which may restrain, prohibit or invalidate any of the
transactions contemplated by this Agreement.
(g) The waiting period (including any extension thereof) applicable to
the Purchaser's acquisition of the Securities pursuant to this Agreement under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, shall have
expired or been terminated, and the Company shall have received evidence thereof
satisfactory to the Company.
ARTICLE VIII
Indemnity
Section 8.01. General. The Company shall indemnify, defend and save
harmless the Purchaser from, against, for and in respect of any Loss which
arises out of or relates to (i) a state of facts as a result of which any
representation made by the Company in Article IV hereof or in any document
delivered pursuant to this Agreement is untrue, inaccurate or misleading in any
respect as of the date hereof, or (ii) the breach of any warranty made by the
Company in Article IV hereof, or (iii) the failure of the Company to comply
with, perform or observe any other term, provision or condition contained in
this Agreement or in any document delivered pursuant to this Agreement; and any
reasonable expenses incurred in connection with investigating, defending or
asserting any claim, action, suit or proceeding incident to any matter
indemnified against hereunder, including, without limitation, court filing fees,
court costs, arbitration fees or costs, witness fees, and fees and disbursements
of legal counsel, investigators, expert witnesses, accountants and other
professionals in connection therewith.
Section 8.02. Cooperation. Each of the parties hereto agrees to render
to the other parties such assistance as they may reasonably require and to
cooperate in good faith with the other parties in order to ensure the proper and
-24-
adequate defense of any claim, action, suit or proceeding brought by any third
party.
Section 8.03. Remedies Cumulative. The remedies of the parties provided
for in this Article VIII shall be cumulative, shall not preclude the assertion
by any party of any other rights such party may have under this Agreement,
applicable law or otherwise (including rescission) and shall survive redemption
or repurchase of the Securities.
ARTICLE IX
Effectiveness of Agreement
Section 9.01. General. Except as otherwise provided herein, the
provisions of this Agreement shall continue in full force and effect for the
benefit of the holders of the Securities so long as any shares of the Securities
are held by the Purchaser or its Affiliates. The representations and warranties
made herein or in connection herewith shall survive the issuance, delivery and
sale of the Securities.
ARTICLE X
Lockup and Standstill Agreements
Section 10.01. Lockup. Prior to the 180th calendar day following the
Closing Date, the Purchaser shall not, and shall cause its Affiliates not to,
sell, assign, transfer or otherwise dispose of any of the Securities, except
that the Purchaser may transfer any of the Securities to any of its wholly owned
subsidiaries.
Section 10.02. Standstill.
(a) The Stock Purchase Agreement, dated as of July 1, 1995, between the
Company and Pharmacia & Upjohn S.p.A. is hereby amended ab initio, effective as
of the date thereof, to delete therefrom Section 5.5 thereof in its entirety.
(b) Prior to the earliest of (i) the occurrence of an Event of Default
(as defined in the Credit Agreement), (ii) the commencement of a tender offer by
any Person, other than Pharmacia & Upjohn, Inc. or any of its wholly owned
subsidiaries,
-25-
for shares of Common Stock, and (iii) July 1, 2000, unless specifically
requested in advance by the Company's Board of Directors, neither the Purchaser
nor any of the Purchasers' Affiliates will, and the Purchaser and its Affiliates
will not assist or encourage others (including by providing financing) to,
directly or indirectly, acquire or agree, offer, seek or propose to acquire
ownership of any securities issued by the Company (including but not limited to
beneficial ownership (as defined in Rule 13d-3 under the 1934 Act)) or enter
into any discussions, negotiations, arrangements or understandings with any
Person with respect to any of the foregoing; provided that this Section 10.02(b)
shall not prohibit (i) the acquisition by the Purchaser and its Affiliates of a
number of shares of Common Stock which, taken together with the number of shares
of Common Stock held by the Purchaser and its Affiliates as of the date of such
acquisition, does not exceed 25% of the aggregate number of outstanding shares
of Common Stock as of the date of this acquisition, (ii) the acquisition by the
Purchaser or its Affiliates of shares of Common Stock pursuant to Section 2.03
of the Credit Agreement or upon exercise of any Warrants (as defined in the
Credit Agreement), or (iii) the acquisition by the Purchaser or its Affiliates
of promissory notes pursuant to the Credit Agreement or any other securities
pursuant to the Credit Documents (as defined in the Credit Agreement).
ARTICLE XI
Miscellaneous
SECTION 11.01. APPLICABLE LAW. THIS AGREEMENT AND ALL RIGHTS ARISING
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE.
SECTION 11.02. WAIVER OF JURY. 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 11.03. Jurisdiction and Venue; Service of Process. (a) The
Company and the Purchaser each hereby
-26-
irrevocably submits to the non-exclusive jurisdiction of any state or federal
court in the Borough of Manhattan, The City of New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this
Agreement and any right arising hereunder, and to the laying of venue in the
Borough of Manhattan, The City of New York. The Company and the Purchaser each
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any objection to the laying of the venue of any such suit, action or proceeding
brought in the aforesaid courts and hereby irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
(b) The Company agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Company at its address set forth in Section 11.06 or at such other address of
which the Purchaser shall have been notified pursuant thereto. The Company
further agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to xxx in
any other jurisdiction.
(c) Each of the Company and the Purchaser waives, to the maximum extent
not prohibited by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section 11.03 any special, exemplary,
punitive or consequential damages.
Section 11.04. Amendments and Waivers.
(a) Any provision of this Agreement may be amended, modified,
supplemented or waived, but only by a written amendment or supplement, or
written waiver, signed by the Company and the Purchaser.
(b) Except to the extent expressly set forth therein, any waiver shall
be effective only in the specific instance and for the specific purpose for
which such waiver is given.
Section 11.05. Cumulative Rights; No Waiver. Each and every right
granted to the Purchaser or allowed the Purchaser by law or equity, shall be
cumulative and not exclusive and may be exercised from time to time. No failure
on the part of the Purchaser to exercise, and no delay in
-27-
exercising, any right will operate as a waiver thereof, nor will any single or
partial exercise by the Purchaser of any right preclude any other or future
exercise thereof or the exercise of any other right.
Section 11.06. Notices. Any communication, demand or notice to be given
hereunder will be duly given when delivered in writing or by telecopy to a party
at its address as indicated below or such other address as such party may
specify in a notice to each other party hereto. A communication, demand or
notice given pursuant to this Section 11.06 shall be addressed:
If to the Company, to
Miravant Medical Technologies
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
with a copy (which, in and of itself, shall not
constitute notice) to
Nida & Xxxxxxx PC
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
If to the Purchaser, to
Pharmacia & Upjohn, Inc.
-28-
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Treasurer
and
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Senior Vice President
of Business Development
and
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy (which, in and of itself, shall not
constitute notice) to
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxx
and Xxxxxx X. Xxxxxxx
(b) Unless otherwise provided to the contrary herein, any notice which
is required to be given in writing pursuant to the terms of this Agreement may
be given by telecopy.
-29-
Section 11.07. Separability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions contained in this Agreement shall not in any way be
affected or impaired thereby.
Section 11.08. Persons Benefitting. This Agreement shall be binding
upon and inure to the benefit of the Purchaser and the Company, and their
respective successors, assigns, beneficiaries, executors and administrators.
Nothing in this Agreement is intended or shall be construed to confer upon any
Person, other than the Company and the Purchaser (and such successors, assigns,
beneficiaries, executors and administrators), any right, remedy or claim under
or by reason of this Agreement or any part hereof. This Agreement may not be
assigned without the written consent of the parties hereto, and any purported
assignment made in violation of this provision shall be null and void. The
provisions of the previous sentence notwithstanding, the Purchaser may assign
its rights and obligations under this Agreement to any of its wholly owned
Subsidiaries without the consent of any other party to this Agreement.
Section 11.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same instrument.
Section 11.10. Headings. The descriptive headings of the several
Sections of this Agreement are inserted for convenience and shall not control or
affect the meaning or construction of any of the provisions hereof.
-30-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date first above written.
MIRAVANT MEDICAL TECHNOLOGIES
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Title: Chief Executive Officer
PHARMACIA & UPJOHN, INC.
By: /s/ Mats Pettersson
--------------------------------
Title: Senior Vice President
PHARMACIA & UPJOHN, S.p.A.
By: /s/ Mats Pettersson
--------------------------------
Title: Attorney-In-Fact
-31-
