EXHIBIT B
TO
NOTE AND WARRANT PURCHASE AGREEMENT
FORM OF WARRANT
NEITHER THIS WARRANT NOR ANY SHARES OF
COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER (THE "SECURITIES
ACT"). THIS WARRANT AND THE COMMON STOCK
ISSUABLE UPON EXERCISE OF THIS WARRANT
MAY NOT BE OFFERED, SOLD, OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF
REGISTRATION UNDER THE SECURITIES ACT OR
UNLESS SUCH OFFER, SALE OR TRANSFER IS
EXEMPT FROM SUCH REGISTRATION.
MIRAVANT MEDICAL TECHNOLOGIES
COMMON STOCK WARRANT
No. __________
___________, 200_
MIRAVANT MEDICAL TECHNOLOGIES, a Delaware corporation (the
"Company"),
hereby certifies that ST. CLOUD
INVESTMENTS, LTD., a British Virgin Islands
company, its permissible transferees,
designees, successors and assigns
(collectively, the "Holder"), for value
received, is entitled to purchase from
the Company at any time commencing on
_______, 200__ [date of issuance of
related Note] and terminating on the tenth
anniversary of such date (the
"Termination Date") up to _____________
shares (which number of shares shall be
equal to one-quarter (1/4) share for each
share of Common Stock to be received
upon conversion of the related Note) (each
a "Share" and collectively the
"Shares") of the Company's common stock par
value $0.01 per Share (the "Common
Stock"), at an exercise price per Share
equal to $_____ (determined as one
hundred ten percent (110%) of the average
of the closing sales prices of the
shares of the Company's Common Stock on a
national exchange or over-the-counter
trading system during all trading days of
the full calendar month prior to the
date on which the Warrant is issued (the
"Exercise Price")). The number of
Shares purchasable hereunder and the
Exercise Price are subject to adjustment as
provided in Section 5 hereof.
1. Exercise of Warrant. Upon presentation
and surrender of this Common Stock
Warrant (this "Warrant"), accompanied by a
completed Election to Purchase in the
form attached hereto as Exhibit A (the
"Election to Purchase") duly executed, at
the principal office of the Company
currently located at 336 Bollay Drive, Santa
Barbara, California 93117, Attn: Chief
Financial Officer, (or such other office
or agency of the Company within the United
States as the Company may designate
to the Holder) together with a check
payable to, or wire transfer to, the
Company in the amount of the Exercise Price
multiplied by the number of Shares
being purchased, the Company or the
Company's Transfer Agent, as the case may
be, shall within three (3) business days
deliver to the Holder hereof
certificates of fully paid and
non-assessable Common Stock which in the
aggregate represent the number of Shares
being purchased. The certificates so
delivered shall be in such denominations as
may be requested by the Holder and
shall be registered in the name of the
Holder or such other name as shall be
designated by the Holder. All or less than
all of the purchase rights
represented by this Warrant may be
exercised and, in case of the exercise of
less than all, the Company, upon surrender
hereof, will at the Company's expense
deliver to the Holder a new warrant
entitling said holder to purchase the number
of Shares represented by this Warrant which
have not been exercised. This
Warrant may only be exercised to the extent
the Company has a sufficient number
of Shares of Common Stock available for
issuance at the time of any exercise.
2. Net Exercise. In lieu of payment of the
Exercise Price described in Section
1, the Holder may elect to receive, without
the payment by the Holder of any
additional consideration, Shares equal to
the value of this Warrant or any
portion hereof by the surrender of this
Warrant or such portion to the Company,
with the net issue election notice attached
hereto as Exhibit B (the "Net
Issuance Election Notice") duly executed,
at the office of the Company as
specified in Section 1. Thereupon, the
Company shall issue to the Holder such
number of fully paid and nonassessable
Shares as is computed using the following
formula:
where: X = Y (A-B)
-------
A
X = the number
of Shares to be issued to the Holder pursuant to
this Section 2.
Y
= the number of Shares covered by this Warrant in respect of
which the net issuance election is made pursuant to this
Section 2.
A
= the fair market value of one Share, as determined in
accordance with the provisions of this Section 2.
B
= the Exercise Price in effect under this Warrant at the time
the net issuance election is made pursuant to this Section 2.
For purposes of this Section 2, the "fair
market value" per Share shall mean:
i. If the class of Shares is traded on a national
securities exchange or is listed on the Nasdaq
National Market (the "NNM") or other over-the-counter
quotation system, the fair market value shall be the
last reported sale price of a Share on such exchange
or on the NNM or other over-the-counter quotation
system on the last business day before the effective
date of exercise of the net issuance election or if
no such sale is made on such day, the mean of the
closing bid and asked prices for such day on such
exchange, the NNM or over-the-counter quotation
system; and
ii. If the class of Shares is not so listed and bid
and ask prices are not reported, the fair market
value shall be the price per Share which the Company
could obtain from a willing buyer for Shares sold by
the Company, as such price shall be determined in
good faith by the Company's Board of Directors.
3. Warrant.
(a) Exchange, Transfer and Replacement. At
any time prior to the exercise
hereof, this Warrant may be exchanged upon
presentation and surrender to the
Company, alone or with other warrants of
like tenor of different denominations
registered in the name of the same Holder,
for another warrant or warrants of
like tenor in the name of such Holder
exercisable for the aggregate number of
Shares as the warrant or warrants
surrendered.
(b) Replacement of Warrant. Upon receipt of
evidence reasonably satisfactory to
the Company of the loss, theft,
destruction, or mutilation of this Warrant and,
in the case of any such loss, theft, or
destruction, upon delivery of an
indemnity agreement reasonably satisfactory
in form and amount to the Company,
or, in the case of any such mutilation,
upon surrender and cancellation of this
Warrant, the Company, at its expense, will
execute and deliver in lieu thereof,
a new Warrant of like tenor.
(c) Cancellation; Payment of Expenses. Upon
the surrender of this Warrant in
connection with any transfer, exchange or
replacement as provided in this
Section 3, this Warrant shall be promptly
canceled by the Company. The Company
shall pay all taxes (other than securities
transfer taxes) and all other
expenses (other than legal expenses, if
any, incurred by the Holder or
transferees) and charges payable in
connection with the preparation, execution
and delivery of Warrants pursuant to this
Section 3.
(d) Warrant Register. The Company shall
maintain, at its principal executive
offices (or at the offices of the transfer
agent for the Warrant or such other
office or agency of the Company as it may
designate by notice to the holder
hereof), a register for this Warrant (the
"Warrant Register"), in which the
Company shall record the name and address
of the person in whose name this
Warrant has been issued, as well as the
name and address of each transferee and
each prior owner of this Warrant.
4. Rights and Obligations of Holders of
this Warrant. The Holder of this Warrant
shall not, by virtue hereof, be entitled to
any rights of a stockholder in the
Company, either at law or in equity;
provided, however, that in the event any
certificate representing shares of Common
Stock or other securities is issued to
the holder hereof upon exercise of this
Warrant, such holder shall, for all
purposes, be deemed to have become the
holder of record of such Common Stock on
the date on which this Warrant, together
with a duly executed Election to
Purchase, was surrendered and payment of
the aggregate Exercise Price was made,
irrespective of the date of delivery of
such Common Stock certificate.
5. Adjustments.
(a) Stock Dividends, Reclassifications,
Recapitalizations, Etc. In the event the
Company: (i) pays a dividend in Common
Stock or makes a distribution in Common
Stock, (ii) subdivides its outstanding
Common Stock into a greater number of
shares, (iii) combines its outstanding
Common Stock into a smaller number of
shares or (iv) increases or decreases the
number of shares of Common Stock
outstanding by reclassification of its
Common Stock (including a
recapitalization in connection with a
consolidation or merger in which the
Company is the continuing corporation),
then (1) the Exercise Price on the
record date of such division or
distribution or the effective date of such
action shall be adjusted by multiplying
such Exercise Price by a fraction, the
numerator of which is the number of shares
of Common Stock outstanding
immediately before such event and the
denominator of which is the number of
shares of Common Stock outstanding
immediately after such event, and (2) the
number of shares of Common Stock for which
this Warrant may be exercised
immediately before such event shall be
adjusted by multiplying such number by a
fraction, the numerator of which is the
Exercise Price immediately before such
event and the denominator of which is the
Exercise Price immediately after such
event.
(b) Cash Dividends and Other Distributions.
In the event that at any time or
from time to time the Company shall
distribute to all holders of Common Stock
(i) any dividend or other distribution of
cash, evidences of its indebtedness,
shares of its capital stock or any other
properties or securities or (ii) any
options, warrants or other rights to
subscribe for or purchase any of the
foregoing (other than in each case, (w) the
issuance of any rights under a
shareholder rights plan, (x) any dividend
or distribution described in Section
5(a), (y) any rights, options, warrants or
securities described in Section 5(c)
and (z) any cash dividends or other cash
distributions from current or retained
earnings), then the number of shares of
Common Stock issuable upon the exercise
of this Warrant shall be increased to a
number determined by multiplying the
number of shares of Common Stock issuable
upon the exercise of this Warrant
immediately prior to the record date for
any such dividend or distribution by a
fraction, the numerator of which shall be
such Current Market Value (as
hereinafter defined) per share of Common
Stock on the record date for such
dividend or distribution, and the
denominator of which shall be such Current
Market Value per share of Common Stock on
the record date for such dividend or
distribution less the sum of (x) the amount
of cash, if any, distributed per
share of Common Stock and (y) the fair
value (as determined in good faith by the
Board of Directors of the Company, whose
determination shall be evidenced by a
board resolution, a copy of which will be
sent to the Holders upon request) of
the portion, if any, of the distribution
applicable to one share of Common Stock
consisting of evidences of indebtedness,
shares of stock, securities, other
property, warrants, options or subscription
or purchase rights; and the Exercise
Price shall be adjusted to a number
determined by dividing the Exercise Price
immediately prior to such record date by
the above fraction. Such adjustments
shall be made whenever any distribution is
made and shall become effective as of
the date of distribution, retroactive to
the record date for any such
distribution. No adjustment shall be made
pursuant to this Section 5(b) which
shall have the effect of decreasing the
number of shares of Common Stock
issuable upon exercise of this Warrant or
increasing the Exercise Price.
(c) Combination: Liquidation. (i) Except as
provided in Section 5(d), in the
event of a Combination (as defined below),
each Holder shall have the right to
receive upon exercise of the Warrant the
kind and amount of shares of capital
stock or other securities or property which
such Holder would have been entitled
to receive upon or as a result of such
Combination had such Warrant been
exercised immediately prior to such event
(subject to further adjustment in
accordance with the terms hereof). Unless
paragraph (ii) is applicable to a
Combination, the Company shall provide that
the surviving or acquiring Person
(the "Successor Company") in such
Combination will assume by written instrument
the obligations under this Section 5 and
the obligations to deliver to the
Holder such shares of stock, securities or
assets as, in accordance with the
foregoing provisions, the Holder may be
entitled to
