XXXXXX STOCK PLEDGE AGREEMENT
THIS XXXXXX STOCK PLEDGE AGREEMENT (the "Agreement") is entered into at Santa
Barbara, California on the date hereinafter set forth by and between XXXXXXX X.
XXXXXX and XXXXX XXXXXX, jointly and severally (collectively referred to herein
as the "Debtor") and MIRAVANT MEDICAL TECHNOLOGIES (the "Secured Party").
WHEREAS:
A. The Debtor is the owner of Four Hundred Five Thousand (405,000) shares
(the "Shares") of the Common Stock of the Secured Party;
B. The Secured Party has previously granted the obligations of the Debtor
to SANWA BANK ("Sanwa"), Obligation Number ***** (the "Sanwa Loan"),
and the Sanwa Loan has been extended and will mature as of October 31,
1999;
C. Sanwa has agreed to extend the Sanwa Loan for a one (1) year period
through October 31, 2000 on the condition that the Secured Party
becomes the holder of the Shares, as a pledge holder and the security
interest therein, and to provide for the liquidation of the Shares as
hereinafter provided;
D. The Secured Party is prepared to extend its granting of the Sanwa Loan
on the condition that the Secured Party receives a security interest
in and becomes the pledge holder of the Shares;
E. The Debtor has provided certain other collateral to the Secured Party
and this Agreement and the collateral created herein is in addition to
any other collateral provided hereby; and
F. The Debtor has agreed to pledge all of the Shares to the Secured Party
to secure the Debtor's obligations to the Secured Party.
NOW, THEREFORE, for value received, the receipt and sufficiency of which is
hereby acknowledged, the Debtor hereby conveys, assigns, transfers and delivers
and grants to the Secured Party as pledge holder and creates a security interest
in and to the Shares (herein called the "Collateral") in favor of the Secured
Party.
1. COLLATERAL. The Collateral hereunder shall be comprised of the
following:
(a) The Shares;
(b) Stock Powers executed in blank with respect to the Shares (the
"Stock Powers"); and
(c) The proceeds, products, additions, substitutions and accessions
of and to any and all of the foregoing.
To have and to hold the Collateral, together with all rights, titles, interests,
liens, privileges, claims, demands and equities existing and to exist in
connection therewith as security therefor unto the Secured Party, its successors
and assigns.
2. OBLIGATIONS SECURED. This Agreement is granted to the Secured Party to
secure the Sanwa Loan and the repayment of the Sanwa Loan by the
Debtor, in full, and the indemnification of the Secured Party in
accordance with the terms of that certain agreement dated February 27,
1998 and as amended on August 4, 1999 (herein collectively referred to
as the "Obligations") including:
(a) The reimbursement when due of all amounts which might be advanced
by the Secured Party to satisfy amounts required to be paid by
the Debtor under this Agreement, or under any other instrument at
any time executed in connection with, or as security for, the
amount of any part of the Obligations or any amount secured
hereby or to pay any taxes, insurance premiums, liens, claims and
charges against any or all of the Collateral, or any properties
covered by any instrument executed, or to be executed, by the
Debtor to secure any part of the Obligations or any amount
secured hereby, together with interest thereon to the extent
provided;
***** Confidential Treatment Requested
(b) The reimbursement and payment by the Debtor of all advances,
charges, costs and expenses (including attorneys' fees and legal
expenses) incurred by the Secured Party in connection with the
Obligations or any amount secured hereby and in exercising any
right, power or remedy conferred by this Agreement or by law
(including, but not limited to, attorneys' fees and legal
expenses incurred by the Secured Party in the collection of
instruments deposited with or purchased by the Secured Party and
amounts incurred in connection with the operation, maintenance or
foreclosure of the Collateral); and
(c) The performance and payment by the Debtor of all their
Obligations under this Agreement, or any other document or
agreement now or hereafter executed in connection with, or as
security for, any part of the Obligations, or any amount secured
hereby.
3. VOTING AND OTHER RIGHTS. Until an Event of Non-Cured Default (as
hereinafter defined), the Debtor will retain (i) all voting rights to
which the Debtor may be entitled with respect to the Collateral and
(ii) the right to receive any notices, proxies, or other materials,
and cash dividends (other than such dividends in connection with the
liquidation or winding-up of any issuer) provided to shareholders by
the issuer of the Shares. Commencing on the date of an Event of
Default (as hereinafter defined), and at any time thereafter until the
Obligations has been paid in full, the Secured Party shall have, with
respect to the Shares, the option, at its discretion, to exercise all
voting rights as to all of the Shares and all other corporate rights
and powers attendant thereto. This Agreement shall constitute an
irrevocable proxy (being coupled with an interest) empowering the
Secured Party to exercise all voting and other rights with respect to
the Collateral upon the occurrence of an Event of Default (as
hereinafter defined) without further notice to the Debtor. If the
Event of Default is cured by the Debtor, within the applicable cure
period, then its rights set forth above shall be reinstated.
4. POSSESSION OF COLLATERAL. Simultaneously upon execution of this
Agreement, the Debtor shall direct Sanwa to deliver to the Secured
Party, in pledge, the certificate representing the Shares and the
Stock Powers duly executed by the Debtor.
5. LIQUIDATION OF COLLATERAL. The Debtor authorizes the Secured Party to
liquidate the Collateral in accordance with the terms of the Account
Control Agreement attached hereto as Exhibit A. All proceeds from the
liquidation of the Collateral will be applied to the Sanwa Loan.
6. FURTHER ASSURANCES. The Debtor will sign, execute, deliver and file,
alone or with the Secured Party, any financing statement, security
agreements or other documents, or procure any document as may be
requested by the Secured Party, from time to time, to confirm, perfect
and preserve the security interest created hereby and, in addition,
the Debtor hereby authorizes the Secured Party to execute and deliver
on behalf of the Debtor and to file such financing statements,
security agreements and other documents without the signature of the
Debtor. The Debtor shall do all such additional and further acts,
things, deeds, give such assurances and execute such instruments as
the Secured Party requires to vest more completely in and assure to
the Secured Party its rights under this Agreement.
7. EXPENSES. The Debtor agrees to pay to the Secured Party, at the
Secured Party's offices, as specified in Paragraph 23 below, all
advances, charges, costs and expenses (including attorneys' fees and
legal expenses) incurred by the Secured Party in connection with
protecting the Secured Party against the claims or interests of any
third person against the Collateral, and in exercising any right,
power or remedy conferred by pledge agreement or by law (including,
but not limited to, attorneys' fees and legal expenses incurred by the
Secured Party in the collection of instruments deposited with or
purchased by the Secured Party and amounts incurred in connection with
the operation, maintenance or foreclosure of any or all of the
Collateral). The amount of all such advances, charges, costs and
expenses shall be due and payable by the Debtor to the Secured Party
upon demand, together with interest thereon from the date of demand at
the maximum rate of nonusurious interest allowed by law.
8. RIGHTS AND REMEDIES WITH RESPECT TO COLLATERAL. The Secured Party is
hereby fully authorized and empowered (without the necessity of any
further consent or authorization from the Debtor) and the right is
expressly granted to the Secured Party, and the Debtor hereby
constitutes, appoints and makes the Secured Party as the Debtor's true
and lawful Attorney and Agent-in-Fact for the Debtor, and in the
Debtor's name, place and stead with full power of substitution, in the
Secured Party's name or the Debtor's name or otherwise, for the
Secured Party's sole use and benefit, but at the Debtor's cost and
expense, to exercise, without notice, all or any of the following
powers at any time following the occurrence of an Event of Default,
with respect to all or any of the Collateral: transfer to or register
in the name of the Secured Party or any nominee of the Secured Party
or any purchaser of any of the Collateral, and whether or not so
transferred or registered, to receive the income and dividends
thereon, including cash and stock dividends, stock splits and rights
to subscribe, and to hold the same as part of the Collateral and/or
apply the same as hereinafter provided; to exchange any of the
Collateral for other property upon reorganization, recapitalization or
other readjustment and in connection therewith to deposit any of the
Collateral with any committee or depository upon such terms as the
Secured Party may determine; after the occurrence of an Event of
Default hereunder, to exercise voting and all other rights as to any
of the Collateral, all without notice and without liability except to
account for property actually received by the Secured Party, provided,
however, the Secured Party shall be under no obligation or duty to
exercise any of the powers hereby conferred upon it and shall be
without liability for any act or failure to act in connection with the
collection of, or the preservation of any rights under, any
Collateral.
9. EVENT OF DEFAULT. The occurrence of any of the following, whatever the
reason therefor, shall constitute an Event of Default:
9.1 Non-payment. The Debtor fails to pay any amount owing to the Secured
Party under the Obligations, or after notice to the Debtor by the
Secured Party, and such failure continues for a period of thirty (30)
days after the due date;
9.2 Non-performance. The Debtor fails to perform or observe any other
terms, covenant or agreement contained under the Obligations, and such
failure continues uncured for a period of thirty (30) days following
the Secured Party's delivery of written notice of such failure to the
Debtor, provided, however, if said default be such that it cannot be
corrected within such period, it shall not constitute an Event of
Default if corrective action is instituted by the Debtor, as the case
may be, within such period and diligently pursued until the default is
cured;
9.3 Bankruptcy. The Debtor files or is subject to any proceeding under the
Federal Bankruptcy Code, any assignment for the benefit of creditors
or any other similar remedy or proceeding under state or federal law,
unless such proceeding is involuntary and is dismissed within
seventy-five (75) days of its institution; or
9.4 Levy. Any material portion of the Collateral is attached or levied
upon, or a receiver or keeper is appointed for the Debtor, and such
attachment, levy or receiver or keeper is not removed within sixty
(60) days.
10. DEFAULT REMEDIES. If all or any part of the Obligations shall become
due and payable, as specified in Paragraph 9 hereof, the Secured Party
may then, or at any time thereafter, apply, set-off, collect, sell in
one or more sales, lease, or otherwise dispose of, any or all of the
Collateral, in its then condition or following any commercially
reasonable preparation or processing, in such order as the Secured
Party may elect, and any such sale may be made either at public or
private sale at its place of business or elsewhere, or at any brokers'
board or securities exchange, either for cash or upon credit or for
future delivery, at such price as the Secured Party may deem fair, and
the Secured Party may be the purchaser of any or all Collateral so
sold and may hold the same thereafter in its own right free from any
claim of the Debtor or right of redemption. No such purchase or
holding by the Secured Party shall be deemed a retention by the
Secured Party in satisfaction of the Obligations. All advertisements,
and the presentment of property at sale, are hereby waived. If,
notwithstanding the foregoing provisions, any applicable provision of
the Uniform Commercial Code or other law requires the Secured Party to
give reasonable notice of any such sale or disposition or other
action, five (5) days' prior written notice shall constitute
reasonable notice. The Secured Party may require the Debtor to
assemble any Collateral not in the Secured Party's possession and make
it available to the Secured Party at a place designated by the Secured
Party which is convenient to the Secured Party. Any sale hereunder may
be conducted by an auctioneer or any officer or agent of the Secured
Party. In addition to any and all remedies provided herein, or in any
of the documents or instruments executed in favor of the Secured
Party, the Secured Party shall have and possess all of the rights and
remedies of a secured party under the Uniform Commercial Code as in
effect in the State of California.
11. PRIVATE SALE. The Debtor recognizes that the Secured Party may be
unable to effect a public sale of all or a part of the Shares and may
be compelled to resort to one or more private sales to a restricted
group of purchasers who will be obligated to agree, among other
things, to acquire the Shares for their own account, for investment
and not with a view to the distribution or resale thereof. The Debtor
acknowledges that any such private sales may be at prices and on terms
less favorable to the Secured Party than those of public sales and
that substantial brokers' and/or finders' fees may be incurred in
connection therewith, and agrees that such private sales and fees
shall be deemed to have been made and incurred in a commercially
reasonable manner and that the Secured Party has no obligation to
delay sale of any of the Shares to permit the issuer thereof to
register it for public sale under the applicable laws.
12. PROCEEDS OF SALE. After all or any part of the Obligations becomes due
and payable as specified in Paragraph 9 hereof, the proceeds of any
sale or other disposition of the Collateral, and all sums received or
collected by the Secured Party from or on account of the Collateral,
shall be first applied by the Secured Party to the Sanwa Loan and then
for reimbursement of Secured Party's expenses, costs and advances.
13. DEFICIENCY. The Debtor shall remain liable to the Secured Party for
the Obligations, advances, costs, charges and expenses, together with
interest thereon at the maximum rate of nonusurious interest allowed
by law, on all amounts remaining unpaid and shall pay the same
immediately to the Secured Party at the Secured Party's offices.
14. SECURED PARTY'S DUTIES. The Secured Party shall be under no duty
whatsoever to make or give any presentment, demand for performance,
notice of nonperformance, protest, notice of protest, notice of
dishonor, or other notice or demand in connection with any Collateral
or the Obligations, or to take any steps necessary to preserve any
rights against prior parties. The Secured Party shall not be liable
for failure to collect or realize upon the Obligations or Collateral,
or for any delay in so doing, nor shall the Secured Party be under any
duty to take any action whatsoever with regard thereto. The Secured
Party shall use reasonable care in the custody and preservation of any
Collateral in its possession, but need not take any steps to keep the
Collateral identifiable. The Secured Party shall have no duty to
comply with any recording, filing, or other legal requirements
necessary to establish or maintain the validity, priority or
enforceability of, or the Secured Party's rights in or to, any of the
Collateral.
15. SECURED PARTY'S ACTIONS. The Debtor waives any right to require the
Secured Party to proceed against any person, exhaust any collateral or
pursue any other remedy in the Secured Party's power, whether under
this Agreement or otherwise; waives any and all notice of acceptance
of this Agreement or of creation, modification, renewal or extension
for any period of the Obligations from time to time; and waives, to
the fullest extent permitted by applicable law, any defense arising by
reason of any disability or other defense of any debtor, or by reason
of the cessation from any cause whatsoever of the liability of any
debtor. Until the Obligations shall have been paid in full, the Debtor
shall have no right to subrogation, and the Debtor waives any right to
enforce any remedy which the Secured Party now has or may hereafter
have against any other person or entity and waives any benefit of and
any right to participate in any Collateral or security whatsoever now
or hereafter held by the Secured Party. The Debtor authorizes the
Secured Party, without notice or demand and without any further
reservation of rights against the Debtor, and without affecting the
Debtor's liability hereunder or on the Obligations, from time to time,
to (a) take and hold any other property as collateral, other than the
Collateral, for the payment of the Obligations, and exchange, enforce,
waive and release any or all of the Collateral or such other property;
(b) apply the Collateral or such other property and direct the order
or manner of sale thereof as the Secured Party, in its discretion, may
determine; (c) renew, extend for any period, accelerate, modify,
compromise, settle or release the obligations of any other person or
entity with respect to the Obligations or Collateral; or (d) release
or substitute the Debtor or any other persons or entity liable on the
Obligations.
16. TRANSFER OF OBLIGATIONS AND COLLATERAL. The Secured Party may transfer
the Obligations and, upon any such transfer, the Secured Party may
transfer any or all of the Collateral and shall be fully discharged
thereafter from all liability with respect to the Collateral so
transferred, and the transferee shall be vested with all rights,
powers and remedies of the Secured Party hereunder with respect to
Collateral so transferred; but with respect to any Collateral not so
transferred, the Secured Party shall retain all rights, powers and
remedies hereby given. The Secured Party may at any time deliver any
or all of the Collateral to the Debtor, whose receipt shall be a
complete and full acquittance for the Collateral so delivered, and the
Secured Party shall thereafter be discharged from any liability
therefor.
17. CUMULATIVE SECURITY. The execution and delivery of this Agreement in
no manner shall impair or affect any other security (by endorsement or
otherwise) for the payment of the Obligations. No security taken
hereafter as security for payment of the Obligations shall impair in
any manner or affect this Agreement. Such present and future
additional security is to be considered as cumulative security.
18. CONTINUING AGREEMENT. This is a continuing agreement and the
conveyance hereunder shall remain in full force and effect and all the
rights, powers and remedies of the Secured Party hereunder shall
continue to exist until the Obligations is paid in full as the same
becomes due and payable; until all of the Obligations under this
Agreement have been paid in full, and until the Secured Party, upon
request of the Debtor, has executed a written termination statement,
reassigned to the Debtor, without recourse, the Collateral and all
rights and liens conveyed hereby and returned possession of the
Collateral to the Debtor. Otherwise this Agreement shall continue
notwithstanding the death or incapacity of the Debtor or the Secured
Party, or any other event or proceeding affecting the Debtor and/or
the maker and/or obligor under this Agreement.
19. CUMULATIVE RIGHTS. The rights, powers and remedies of the Secured
Party hereunder shall be in addition to all rights, powers and
remedies given by statute or rule of law and are cumulative. The
exercise of any one or more of the rights, powers and remedies
provided herein shall not be construed as a waiver of any other
rights, powers and remedies of the Secured Party. Furthermore,
regardless of whether or not the Uniform Commercial Code is in effect
in the jurisdiction where such rights, powers and remedies are
asserted, the Secured Party shall have the rights, powers and remedies
of a secured party under the State of California Uniform Commercial
Code, as amended.
20. EXERCISE OF RIGHTS. Time shall be of the essence for the performance
of any act under this Agreement or for payment of the Obligations by
the Debtor, but neither the Secured Party's acceptance of partial or
delinquent payments nor any forbearance, failure or delay by the
Secured Party in exercising any right, power or remedy shall be deemed
a waiver of any Obligations of the Debtor or of any right, power or
remedy of the Secured Party or preclude any other or further exercise
thereof; and no single or partial exercise of any right, power or
remedy shall preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy.
21. REMEDY AND WAIVER. The Secured Party may remedy any default without
waiving the default remedies or waiving any prior or subsequent
default.
22. PRESERVATION OF LIABILITY. Neither this Agreement, nor the exercise by
the Secured Party of (or the failure to so exercise) any right, power
or remedy conferred herein, or by law, shall be construed as relieving
any person liable under this Agreement or on the Obligations from full
liability under such instruments or on the Obligations and for any
deficiency thereon.
23. NOTICES. Any notice or demand to the Debtor under this Agreement, or
in connection with the Collateral, may be given and shall conclusively
be deemed and considered to have been given and received upon the
deposit thereof, postage prepaid, addressed to the Debtor at the
address of the Debtor appearing on the records of the Secured Party,
but actual notice, however given or received, shall always be
effective. For the purposes hereof, the addresses of the Debtor and
the Secured Party (until notice of a change thereof is given as
provided in this Paragraph 23), shall be as follows:
If to Secured Party: MIRAVANT MEDICAL TECHNOLOGIES
000 Xxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Facsimile #000-000-0000
If to the Debtor: XXXXXXX X. and XXXXX XXXXXX
*****
24. CONSTRUCTION. This Agreement has been made in and the conveyance,
assignment, transfer and delivery has been made in, and the security
interest granted hereby is granted in, and each shall be governed by
the laws of the State of California in all respects, including matters
of construction, validity, enforcement and performance.
25. AMENDMENT AND WAIVER. This Agreement may not be amended (nor may any
of its terms be waived), except in writing duly signed by the Secured
Party and the Debtor.
***** Confidential Treatment Requested
26. TERMS DEFINED IN UNIFORM COMMERCIAL CODE. Except as the context may
otherwise require, any term used herein that is defined in the
California Uniform Commercial Code shall have the meaning given
therein.
27. INVALIDITY. If any provision of this Agreement is rendered or declared
illegal, invalid or unenforceable by reason of any existing or
subsequently enacted legislation or by a judicial decision which has
become final, the Debtor and the Secured Party shall promptly meet and
negotiate substitute provisions for those rendered illegal, invalid or
unenforceable, but all of the remaining provisions shall remain in
full force and effect.
28. REVERSIONARY PAYMENT. The Secured Party agrees that if the Secured
Party exercises its rights and obtains title to the Shares, free and
clear of any claims of the Debtor or third parties, and within six (6)
months after an Event of Default completes the sale and transfer of
the Shares in an amount sufficient to pay all sums or Obligations
described in this Agreement, the Secured Party shall pay any amounts
received by the Secured Party in excess of such sums to the Debtor.
29. SUCCESSORS AND ASSIGNS. The covenants, representations, warranties and
agreements herein set forth shall be binding upon the Debtor and shall
inure to the benefit of the Secured Party, its successors and assigns.
30. CONFLICTING PROVISIONS. To the extent that any of the terms or
provisions contained in this Agreement are inconsistent with those
contained in any other document, instrument or agreement executed
pursuant hereto, the terms and provisions contained herein shall
control. Otherwise, such provisions shall be considered cumulative.
31. JURISDICTION. This Agreement, any notes issued hereunder, the rights
of the parties hereunder to and concerning the Collateral, and any
documents, instruments or agreements mentioned or referred to herein
shall be governed by and construed according to the laws of the State
of California, to the jurisdiction of whose courts the parties hereby
submit.
32. RELIANCE. Each warranty, representation, covenant and agreement
contained in this Agreement shall be conclusively presumed to have
been relied upon by the Secured Party, regardless of any investigation
made or information possessed by the Secured Party and shall be
cumulative and in addition to any other warranties, representations,
covenants or agreements which the Debtor shall now or hereafter give,
or cause to be given, to the Secured Party.
33. WAIVER OF JURY TRIAL. The Debtor and the Secured Party hereby
expressly and voluntarily waive any and all rights, whether arising
under the California constitution, any rules of the California Code of
Civil Procedure, common law or otherwise, to demand a trial by jury in
any action, matter, claim or cause of action whatsoever arising out of
or in any way related to this Agreement or any other agreement,
document or transaction contemplated hereby.
34. RESTRUCTURING AND LITIGATION EXPENSES. In the event the Secured Party
and the Debtor negotiate for, or enter into, any restructuring,
modification or refinancing of the Sanwa Loan for the purposes of
remedying an Event of Default, the Secured Party may require the
Debtor to reimburse all of the Secured Party's costs and expenses
incurred in connection therewith, including, but not limited to,
reasonable attorneys' fees and costs of any audit or appraisals
required by the Secured Party to be performed in connection with such
restructuring, modification or refinancing. In the event of any suit,
mediation, arbitration or other action in relation to this Agreement
or any document, instrument or agreement executed with respect to,
evidencing or securing the Sanwa Loan, the prevailing party, in
addition to all other sums to which it may be entitled, shall be
entitled to reasonable attorneys' fees.
35. INDEPENDENT COUNSEL. NIDA & XXXXXXX, LLP has acted as counsel to the
Secured Party in this matter, and they have advised the Debtor to seek
independent counsel prior to executing this Agreement.
[Signatures on next page]
IN WITNESS WHEREOF, the parties have executed this Agreement in one or more
counterparts which, taken together, shall constitute one and the same Agreement,
and shall be dated as of October 27, 1999.
DEBTOR:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxx Xxxxxx
---------------------------------------
XXXXX XXXXXX
SECURED PARTY:
MIRAVANT MEDICAL TECHNOLOGIES
By: /s/ Xxxx X. Xxxxxxx
------------------------
Name: Xxxx X. Xxxxxxx
Title: CEO
