This LOCK-UP AGREEMENT ("Agreement") is entered into as of __________, 1997,
by and between MIRAVANT MEDICAL TECHNOLOGIES, a Delaware corporation (the
"Company"), and _______________________________ (the "Purchaser").
RECITALS
A. The Company, Purchaser and certain other purchasers signatory thereto
("Other Purchasers") are executing and delivering the Securities Purchase
Agreement dated as of even date herewith (the "Purchase Agreement").
Capitalized terms used and not defined herein shall have the meanings given
to such terms in the Purchase Agreement.
B. The Company, Purchaser and the Other Purchasers are executing and
delivering the Registration Rights Agreement dated as of even date herewith
("Registration Rights Agreement").
C. As a condition to issuing the Common Stock to Purchaser pursuant to the
Purchase Agreement, the Company requires that Purchaser enter into this
Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of their respective promises contained
herein and in the Purchase Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and Purchaser hereby agree as follows:
ARTICLE I
RESTRICTIONS ON SALE OF COMMON
STOCK
1.1 Restriction on Dispositions. Except as provided in Section 1.2, or
except for any option transaction permitted pursuant to Section 4.10 of the
Purchase Agreement, prior to the Termination Date (as defined below)
Purchaser shall not, directly or indirectly, offer, sell, transfer, assign,
contract to sell or otherwise dispose of (any such action, a "Disposition")
any Common Shares or Warrant Shares acquired by and beneficially owned by
Purchaser pursuant to the Purchase Agreement. A pledge of any such shares of
Common Stock shall not constitute a Disposition hereunder if effected in
compliance with Section 4.11 of the Purchase Agreement.
1.2 Permitted Dispositions. Upon and following the date that the Common
Shares are registered pursuant to the Registration Rights Agreement, and
prior to the Termination Date, Purchaser shall be permitted to effect
Dispositions of Common Shares and Warrant Shares if the weighted average bid
price for shares of Common Stock during the **** trading days immediately
preceding the date of such Disposition (as reported by Bloomberg, L.P.) is
equal to or greater than $*** (such amount to be adjusted from time to
time to reflect the effect of any stock dividends, stock splits, reverse
stock splits discounted equity offerings or actions similar to any of the
foregoing), in an amount not to exceed, individually and in the aggregate
among the Purchasers signatory hereto)******.
1.3 Term. The restrictions on Dispositions set forth herein shall remain in
full force and effect until the earlier of (a) __________, 1998 or (b) the
optional termination of the Agreement pursuant to Section 1.4 (such date of
termination, the "Termination Date").
*CONFIDENTIAL MATERIAL HAS BEEN DELETED AND HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT OF 1933.
1.4 Option to Terminate. Notwithstanding any other provision of this
Agreement, Purchaser shall have the unilateral right to terminate this
Agreement if any of the following events involving the Company shall have
been announced as pending or planned, or shall have occurred:
(a) A Change in Control Transaction (as defined below);
(b) A "going private" transaction under Rule 13e-3 promulgated
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(c) A tender offer by the Company under Rule 13e-4 promulgated
pursuant to the Exchange Act;
(d) The Company shall (1) become insolvent; (2) admit in writing
its inability to pay its debts generally as they mature; (3) make an
assignment for the benefit of creditors or commence proceedings for its
dissolution; or (4) apply for or consent to the appointment of a trustee,
liquidator or receiver for it or for a substantial part of its property or
business;
(e) Bankruptcy, reorganization, insolvency or liquidation
proceedings or other proceedings, or relief under any bankruptcy law or any
law for the relief of debt shall be instituted by or against the Company, or
the Company shall by any action or answer approve of, consent to, or
acquiesce in any such proceedings or admit to any material allegations of, or
default in answering a petition filed in any such proceedings.
(f) Any member of management of the Company subject to a lock-up
agreement pursuant to Section 4.14 of the Purchase Agreement shall sell or
dispose of shares of Common Stock in violation of the provisions of such
Section 4.14.
As used in this Agreement, a "Change of Control Transaction" shall mean,
(i) the sale, conveyance or disposition of all or substantially all of the
assets of the corporation, (ii) a consolidation or merger of the Company with
or into any other "Person" (whether or not the Company is the surviving
Person, but other than a merger or consolidation whereby the stockholders of
the Company immediately preceding the merger or consolidation continue to
own, in such merger or consolidation, greater than 50% of the voting power of
the capital stock of the surviving Person that is normally entitled to vote
in the election of directors, managers or trustees, as applicable), or, (iii)
any person or any "group" (as such term is used in Section 13(d) of the
Exchange Act), becomes the beneficial owner or is deemed to beneficially own
(as described in Rule 13d-3 under the Exchange Act without regard to the
60-day exercise period) in excess of 30% of the Company's voting power of the
capital stock of the Company normally entitled to vote in the election of
directors of the Company.
ARTICLE II
LEGEND; REMOVAL
2.1 Legends. Purchaser understands that, subject to Section 2.2
hereof, until the earlier of (a) such time as the Common Shares and Warrant
Shares acquired by Purchaser pursuant to the Purchase Agreement are subject
to a permitted Disposition in accordance with the terms of Section 1.2
hereof, or (b) the Termination Date, the certificates for the Common Shares
and Warrant Shares will bear a restrictive legend (the "Stock Legend") in the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR DISPOSED OF, EXCEPT IN ACCORDANCE WITH THE TERMS OF THE LOCK-UP
AGREEMENT DATED AS OF __________, 1997 ("LOCK-UP AGREEMENT") AMONG MIRAVANT
MEDICAL TECHNOLOGIES AND THE PURCHASER PARTIES THERETO. A TRUE AND CORRECT
COPY OF THE LOCK UP AGREEMENT IS AVAILABLE FROM THE COMPANY UPON REQUEST.
2.2 Removal of Legend. The Stock Legend shall be removed and the
Company shall issue a certificate without such Stock Legend to the holder
("Holder") of any Security upon which it is stamped, and a certificate for a
security shall be originally issued without the Stock Legend, if such holder
provides a certificate in the form attached to this Agreement as Exhibit A (a
"Disposition Certificate"), (a) designating the number of Securities from
which holder requests that the Stock Legend be removed and (b) certifying
that Disposition of the Securities specified in such Disposition Certificate
is permitted pursuant to Section 1.2 of this Agreement. Notwithstanding
anything in this Section 2.2 or any other Section of this Agreement to the
contrary, the Stock Legend shall be removed from all of the Common Shares and
Warrant Shares on, and shall not be placed on Warrant Shares on and after,
the Termination Date. In order to effect issuance of a certificate without
the Stock Legend a Holder shall: (a) fax (or hand deliver) a copy of the
fully executed Disposition Certificate to the Company (unless the Termination
Date has occurred) and (b) surrender the certificates representing the Common
Shares or Warrant Shares to be delegended and the original Disposition
Certificate (if applicable) as soon as practicable thereafter. Upon receipt
by the Company of the fax copy of a Disposition Certificate, the Company
shall, no later than the later of (x) the third business day following such
receipt or (y) the first business day following the date of receipt of the
certificates representing the Common Shares or Warrant Shares and the
original Disposition Certificate, issue and deliver to the Holder (or at its
direction) (i) the number of unlegended shares to be issued pursuant to the
Disposition Certificate and (ii) a certificate representing the number of
Common Shares or Warrant Shares, if any, from which the Stock Legend is not
being removed. No Disposition Certificate is required to be submitted in
connection with removal of the Stock Legend at the Termination Date. The
person or persons entitled to receive unlegended Common Shares or Warrant
Shares issuable pursuant to a Disposition Certificate under this Section 2.2
shall be treated for all purposes as the record holder of such unlegended
shares at the close of business on the date of the Disposition Certificate
submitted with respect thereto.
2.3 Transfer Agent Instructions. The Company shall irrevocably instruct its
transfer agent to issue certificates, registered in the name of each
Purchaser or its nominee, for the Common Shares and Warrant Shares. Such
certificates shall bear the Stock Legend only to the extent provided by
Sections 2.1 and 2.2 above. The Company covenants that no instruction other
than such instructions referred to in this Section 2.3 (and instructions
relating to compliance with the Securities Act as provided in Section 5.2 of
the Purchase Agreement) will be given by the Company to its transfer agent
and that the Common Shares and Warrant Shares shall otherwise be freely
transferable on the books and records of the Company. On the earlier to
occur of (a) receipt by the Company of a duly executed Disposition
Certificate, or (b) the Termination Date so required by Section 2.2 the
Company shall, subject to applicable laws affecting the transfer of
securities, permit the transfer, and, promptly instruct its transfer agent to
issue within the time period specified in Section 2.2 one or more
certificates without the Stock Legend in such name and in such denomination
as specified by such Purchaser. The Company acknowledges that a breach by it
of its obligations hereunder will cause irreparable harm to a Purchaser by
vitiating the intent and purpose of the transaction contemplated hereby and
by the Purchase Agreement. Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Section 2 will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section 2, that a Purchaser shall be
entitled, in addition to all other available remedies, to an injunction
restraining any breach and requiring immediate issuance and transfer, without
the necessity of showing economic loss and without any bond or other security
being required. In addition and not in lieu of the foregoing remedies, if
the Company fails to be issue Common Shares or Warrant Shares without the
Stock Legend within three (3) trading days of the date when such issuance is
required pursuant to Section 2.2 hereof (the "Required Issuance Date"), the
Company shall pay to Purchaser an amount equal to two percent (2%) of the
purchase price paid for the Common Shares and Warrant Shares required to be
issued for the first month or 30 days following the Required Issuance Date,
and three percent (3%) of said purchase price for each month or thirty (30)
days thereafter, continuing through the date the Common Shares and Warrant
Shares are issued without the Stock Legend. These payments will be prorated
on a daily basis for partial months and will be paid to the Purchaser in cash
within five (5) business days following the earlier of: (i)
the end of each month following the Required Issuance Date, or (ii) the date
of issuance of the unlegended shares.
2.4 Dispute Resolution. If there is a dispute as to Purchaser's calculation
of the number of Common Shares and Warrant Shares properly subject to a
Disposition Certificate, the Company shall proceed with the issuance of the
number of unlegended Common Shares not in dispute. The matter shall then,
within two (2) business days, be submitted by the Company to an accounting
firm mutually acceptable to the Company and Purchaser for resolution, and
such firm shall issue a determination of the proper calculation within three
(3) business days of submission. The calculation of such accounting firm
shall be final and binding on the parties. If the accounting firm determines
that any of the disputed Common Shares or Warrant Shares were not
appropriately subject to a Disposition Certificate under Section 1.2
("Non-Disposable Shares"), the Company shall be relieved of its obligation to
pay damages accruing pursuant to Section 2.3 during the dispute solely with
respect to such Non-Disposable Shares.
ARTICLE III
MISCELLANEOUS
3.1 Governing Law: Jurisdiction. This Agreement shall be governed by and
construed in accordance with the Delaware General Corporation Law (in respect
of matters of corporation law) and the laws of the State of California (in
respect of all other matters) applicable to contracts made and to be
performed in the State of California. The parties hereto irrevocably consent
to the jurisdiction of the United States federal courts and state courts
located in the County of New Castle in the State of Delaware or the County of
Santa ▇▇▇▇▇▇▇ 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 Purchaser irrevocably
waives the defense of an inconvenient forum to the maintenance of such suit
or proceeding in such forum. The Company and each Purchaser further agrees
that service of process upon the Company or such Purchaser, as applicable,
mailed by the first class mail in accordance with Section 3.5 shall be deemed
in every respect effective service of process upon the Company and such
Purchaser in any suit or proceeding arising hereunder. Nothing herein shall
affect Purchaser's 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. The
parties hereto irrevocably waive any right to a trial by jury under
applicable law.
3.2 Counterparts. This Agreement may be executed in two or more
counterparts, including, without limitation, by facsimile transmission, all
of which counterparts shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. In the event any signature page is delivered by
facsimile transmission, the party using such means of delivery shall cause
additional original executed signature pages to be delivered to the other
parties.
3.3 Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
3.4 Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement
or the validity or enforceability of this Agreement in any other jurisdiction.
3.5 Notice. Any notice herein required or permitted to be given shall be
in writing and may be delivered in accordance with the terms of Section 8.6
of the Purchase Agreement.
3.6 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns. Neither the
Company nor any Purchaser shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, each Purchaser may assign its rights and
obligations hereunder to any of its "affiliates," as that term is defined
under the Securities Act, without the consent of the Company so long as such
affiliate is an accredited investor (within the meaning of Regulation D under
the Securities Act) and agrees in writing to be bound by this Agreement.
3.7 Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns
and is not for the benefit of, nor may any provision hereof be enforced by,
any other person.
3.8 Further Assurances. 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.
3.9 Remedies. No provision of this Agreement providing for any remedy to a
Purchaser shall limit any remedy which would otherwise be available to such
Purchaser at law or in equity. Nothing in this Agreement shall limit any
rights a Purchaser may have with any applicable federal or state securities
laws with respect to the investment contemplated hereby.
3.10 Future Benefits. Purchaser will receive the identical, pro rata
benefit offered to other purchasers entering into substantially similar
Lock-Up Agreements with the Company as of the date hereof in the event the
Company terminates such other agreements or otherwise waives, refrains from
enforcing, favorably modifies or amends, or otherwise provides benefits to
such other purchasers thereunder.
[Signatures to Follow]
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Lock-Up Agreement to be duly executed as of the date first above written.
MIRAVANT MEDICAL TECHNOLOGIES
By:________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
Date: __________, 1997
PURCHASER:
_________________________________
By:______________________________
Name:
Title:
Date: October ___, 1997
EXHIBIT A
DISPOSITION CERTIFICATE
[DATE]
Via Facsimile & Overnight Courier
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
Miravant Medical Technologies
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[TRANSFER AGENT NAME]
[ADDRESS]
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Nida & ▇▇▇▇▇▇▇, a Professional Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
Pursuant to Section 1.2 of the Lock-Up Agreement dated as of October ___,
1997 (the "Lock-Up Agreement") entered into by and between Miravant Medical
Technologies (the "Corporation") and the undersigned registered holder of the
Corporation's common stock (the "Holder"), Holder hereby irrevocably elects
to effect the "Disposition" (as that term is defined in the Lock-Up
Agreement) of __________________________________ (________) shares of the
Corporation's common stock (the "Shares"), as represented by stock
certificate No(s). _______________________________ copies of which
certificate(s) are attached for your reference and the originals thereof
which shall be delivered to you together with the original of this
Disposition Certificate.
By Holder's signature below, Holder certifies that the Disposition of Shares
requested hereby is made in accordance with Section 1.2 of the Lock-Up
Agreement insofar as:
**********************************************************************
*CONFIDENTIAL MATERIAL HAS BEEN DELETED AND HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT OF 1933.
In accordance with the foregoing and Section 2.2 of the Lock-Up Agreement,
please re-issue, within the time period specified in the Lock-Up Agreement,
the number of Shares indicated above to the undersigned without the "Stock
Legend" (as defined in the Lock-Up Agreement), at the delivery address and in
the denominations indicated below.
If you have any questions, please call me.
Very truly yours,
_______________________________
By:____________________________
Name:
Title:
Address for Delivery of Shares:
______________________________
______________________________
______________________________
Attention:
Please issue Shares in the form of ___________ certificates each representing
___________ common shares.