EXHIBIT A
TO
XXXXXX STOCK PLEDGE AGREEMENT
ACCOUNT CONTROL AGREEMENT
ACCOUNT CONTROL AGREEMENT
Xxxxxxx Xxxxx Barney Inc. Account Number
Note: This Account Control Agreement (the "Agreement") is subject
to the review and acceptance by Xxxxxxx Xxxxx Xxxxxx, Inc.
To: Xxxxxxx Xxxxx Barney Inc. ("Xxxxxxx Xxxxx Xxxxxx"),
Security Intermediary
Date: October 27, 1999
Gentlemen:
The undersigned, XXXXXXX X. XXXXXX and XXXXX XXXXXX (hereinafter
collectively, the "Pledgor"), and MIRAVANT MEDICAL TECHNOLOGIES (hereinafter,
the "Pledgee"), entered into a Stock Pledge Agreement dated October 27, 1999
(the "Security Agreement") as amended pursuant to which a security interest in
all present and future assets (as hereinafter defined) in the Account (as
hereinafter defined) of the Pledgor are granted by the Pledgor to the Pledgee
(the "Pledge"). In connection therewith, the Pledgor hereby instructs you to:
1. establish a cash securities account, which is to be known as "MIRAVANT
MEDICAL TECHNOLOGIES Secured Party, f/b/o XXXXXXX X. XXXXXX and XXXXX XXXXXX"
(the "Account");
2. place the assets, including all financial assets, securities,
entitlements and all other assets now or hereinafter received in such Account
(together, the "Assets") including, without limitation, those assets listed in
Exhibit A attached hereto and made a part hereof, into the Account. The Assets
are pledged according to the terms of the Security Agreement. As long as the
Assets are pledged to the Pledgee, Xxxxxxx Xxxxx Barney will not invade the
Assets to cover margin debits or calls in any other accounts of the Pledgor;
Xxxxxxx Xxxxx Xxxxxx agrees that, except for liens resulting from commissions,
fees or charges based upon transactions in the Account pursuant to its Client
Agreement with the Pledgor, it subordinates in favor of the Pledgee any security
interest, lien or right of setoff that Xxxxxxx Xxxxx Barney may have,
acknowledges that neither it, its subsidiaries or its affiliates has or will
assert a lien on the Assets, and acknowledges that it has not received notice of
any other security interest in such Assets. In the event any such notice is
received, Xxxxxxx Xxxxx Xxxxxx will promptly notify the Pledgee. The Pledgor
herein represents that the Assets are free and clear of any lien or
encumbrances, and agrees that, with the exception of the security interest
granted herein, no further or additional liens or encumbrances will be placed on
the Assets without the express written consent of both the Pledgee and Xxxxxxx
Xxxxx Barney;
3. maintain the Assets pledged as described in Exhibit A attached hereto,
or the proceeds from the sale of such Assets, together with any income derived
therefrom, except that the Pledgee and the Pledgor acknowledge and agree that
Xxxxxxx Xxxxx Xxxxxx shall not be held responsible for any market decline in the
market value of the Assets, or to notify the Pledgee or the Pledgor of any such
decline in the market value of the Assets, or to take any action with regard to
such Assets, except upon the specific written directions stated herein;
4. provide to the Pledgee, so long as this Agreement remains in effect,
with a duplicate copy to the Pledgor, a monthly statement of Assets and a
confirmation statement of each transaction effected in the Account after such
transaction is effected.
The Pledgor directs Xxxxxxx Xxxxx Barney to sell the Assets, as described
in Exhibit B hereto (the "Pledgor's Instructions"). The Pledgor shall not
instruct Xxxxxxx Xxxxx Xxxxxx to deliver and, except as may be required by law
or by Court Order, Xxxxxxx Xxxxx Barney shall not deliver cash and/or
securities, or proceeds from the sale of, or distributions on, such securities
out of the Account to the Pledgor or to any other person or entity except to the
Pledgee. Xxxxxxx Xxxxx Xxxxxx shall comply with the Pledgor's Instructions, and
no other instructions of the Pledgor, without the consent of the Pledgee or any
other person (it being understood and agreed that Xxxxxxx Xxxxx Barney shall
have no duty or obligation whatsoever of any kind or character to have knowledge
of the terms of the Security Agreement or to determine whether or not an event
of default exists). The Pledgor hereby agrees to indemnify and hold harmless
Xxxxxxx Xxxxx Xxxxxx, its affiliates, officers and employees from and against
any and all claims, causes of action, liabilities, lawsuits, demands and/or
damages, including, without limitation, any and all court costs and reasonable
attorneys' fees, that may result by reason of Xxxxxxx Xxxxx Barney complying
with such instructions of the Pledgor. In the event that Xxxxxxx Xxxxx Xxxxxx is
sued or becomes involved in litigation as a result of complying with the
Pledgor's Instructions, the Pledgor and the Pledgee agree that Xxxxxxx Xxxxx
Barney shall be entitled to charge all the costs and fees it incurs in
connection with such litigation to the Assets in the Account and to withdraw
such sums as the costs and charges accrue.
The Pledgee shall have no liabilities, of any kind or nature, in connection
with the execution of the Pledgor's Instructions. The Pledgee shall only
indemnify Xxxxxxx Xxxxx Xxxxxx from any claims, suits, liabilities or damages
which may result from Xxxxxxx Xxxxx Barney complying with any instructions of
the Pledgee, which the Pledgee shall subsequently deliver in writing to Xxxxxxx
Xxxxx Xxxxxx.
Except with respect to the obligations and duties as set forth herein, this
Agreement shall not impose or create any obligations or duties upon Xxxxxxx
Xxxxx Barney greater than or in addition to the customary and usual obligations
and duties of Xxxxxxx Xxxxx Xxxxxx to the Pledgor.
This Agreement shall be binding upon and inure to the benefit of the heirs,
successors and assigns of the respective parties hereto and shall be construed
in accordance with the laws of the State of New York without regard to its
conflict of law principles and the rights and remedies of the parties shall be
determined in accordance with such laws.
Xxxxxxx Xxxxx Barney will treat all property at any time held by Xxxxxxx
Xxxxx Xxxxxx in the Account as financial Assets. Xxxxxxx Xxxxx Barney
acknowledges that this Agreement constitutes written notification to Xxxxxxx
Xxxxx Xxxxxx, pursuant to Articles 8 and 9 of the Uniform Commercial Code of the
State of New York, and any applicable federal regulations for the Federal
Reserve Book Entry System, of the Pledgee's security interest in the Assets. The
Pledgor, the Pledgee and Xxxxxxx Xxxxx Barney also are entering into this
Agreement to perfect and confirm the first and exclusive priority of the
Pledgee's security interest in the Assets. Xxxxxxx Xxxxx Xxxxxx agrees to
promptly make and thereafter maintain all necessary entries or notations in its
books and records to reflect the Pledgee's security interest in the Assets.
If any term or provision of this Agreement is determined to be invalid or
unenforceable, the remainder of this Agreement shall be construed in all
respects as if the invalid or unenforceable term or provision were omitted. This
Agreement may not be altered or amended in any manner without the express
written consent of the Pledgor, the Pledgee and Xxxxxxx Xxxxx Barney. This
Agreement may be executed in any number of counterparts, all of which shall
constitute one original agreement.
This Agreement may be terminated by Xxxxxxx Xxxxx Xxxxxx upon thirty (30)
days' written notice to the Pledgor and the Pledgee. Upon expiration of such
thirty (30) day period, Xxxxxxx Xxxxx Barney shall be under no further
obligation except to hold the pledged Assets in accordance with the terms of
this Agreement, pending receipt of written instructions from the Pledgor and the
Pledgee, jointly regarding the further disposition of the pledged Assets.
The Pledgor and the Pledgee acknowledge that this Agreement supplements the
Pledgor's existing Client Agreement(s) with Xxxxxxx Xxxxx Xxxxxx and, except as
expressly provided herein, in no way is this Agreement intended to abridge any
rights that Xxxxxxx Xxxxx Barney might otherwise have.
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this Agreement
to be executed by their duly authorized officers all as of the day first above
written.
Date: 11/2/99 PLEDGOR:
/s/ Xxxxxxx X. Xxxxxx
---------------------
XXXXXXX X. XXXXXX
/s/ Xxxxx Xxxxxx
----------------
XXXXX XXXXXX
Date: 12/20/99 PLEDGEE:
MIRAVANT MEDICAL TECHNOLOGIES
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: CEO
XXXXXXX XXXXX XXXXXX
Date: 12/8/99 By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Xxxxxxx
Title: Regional Vice President
Date: 12/19/99 By: /s/ Xxxxxxx Xxxxxxx
---------------
Name: Xxxxxxx Xxxxxxx
Title: Regional Director
EXHIBIT A
TO
ACCOUNT CONTROL AGREEMENT
PLEDGED COLLATERAL ACCOUNT NUMBER:
ASSETS
405,000 shares of the Common Stock of Miravant Medical Technologies
EXHIBIT B
TO
ACCOUNT CONTROL AGREEMENT
PLEDGOR'S INSTRUCTIONS
The Pledgor irrevocably and unconditionally directs Xxxxxxx Xxxxx Barney,
with respect to the Assets, as follows:
1. *****
2. *****
3. *****
4. *****
5. *****
***** Confidential Treatment Requested
