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Exhibit 10.22
SECURITIES ACCOUNT CONTROL AGREEMENT
WELLS FARGO
(WELLS FARGO LENDER INTERMEDIARY)
THIS SECURITIES ACCOUNT CONTROL AGREEMENT
(this "Agreement") is entered into as
of DECEMBER 19, 2003, by and among NASTECH
PHARMACEUTICAL COMPANY INC.
("Customer"), WELLS FARGO BANK, NATIONAL
ASSOCIATION, acting through its
Investment Group ("Intermediary"), and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
acting through its BELLEVUE RCBO Office
("Secured Party").
RECITALS
A.
Customer maintains that certain account no. 14756200, and may now
or
hereafter maintain sub-accounts thereunder
or consolidated therewith
(collectively, the "Securities Account")
with Intermediary pursuant to an
agreement between Intermediary and Customer
dated as of JUNE 6, 2003 (the
"Account Agreement"), and Customer has
granted to Secured Party a security
interest in the Securities Account and all
financial assets and other property
now or at any time hereafter held in the
Securities Account.
B.
Secured Party, Customer and Intermediary have agreed to enter into
this
Agreement to perfect Secured Party's
security interests in the Collateral, as
defined below.
NOW, THEREFORE, in consideration of their
mutual covenants and promises, the
parties agree as follows:
1.
DEFINITIONS. As used herein:
1.1 the term
"Collateral" shall mean: (a) the Securities Account; (b) all
financial assets credited to the Securities
Account; (c) all security
entitlements with respect to the financial
assets credited to the Securities
Account; (d) any and all other investment
property or assets maintained or
recorded in the Securities Account; and (e)
all replacements or substitutions
for, and proceeds of the sale or other
disposition of, any of the foregoing,
including without limitation, cash
proceeds; and
1.2 the terms
"investment property," "entitlement order," "financial asset"
and "security entitlement" shall have the
respective meanings set forth in the
Washington Uniform Commercial Code. The
parties hereby expressly agree that all
property, including without limitation,
cash, certificates of deposit and mutual
funds, at any time held in the Securities
Account is to be treated as a
"financial asset."
2.
AGREEMENT FOR CONTROL. Intermediary is authorized by Customer
and
agrees to comply with all entitlement
orders originated by Secured Party with
respect to the Securities Account, and all
other requests or instructions from
Secured Party regarding disposition and/or
delivery of the Collateral, without
further consent or direction from Customer
or any other party.
3.
CUSTOMER'S RIGHTS WITH RESPECT TO THE COLLATERAL.
3.1 Until
Intermediary is notified otherwise by Secured Party: (a)
Customer, or any party authorized by
Customer to act with respect to the
Securities Account, may give trading
instructions to Intermediary with respect
to Collateral in the Securities Account;
and (b) Intermediary may distribute to
Customer or any other party in accordance
with Customer's directions only that
portion of the Collateral which consists of
interest and/or cash dividends
earned on financial assets maintained in
the Securities Account.
3.2 Without
Secured Party's prior written consent, except to the extent
permitted by the preceding paragraph: (a)
neither Customer nor any party other
than Secured Party may withdraw any
Collateral from the Securities Account; and
(b) Intermediary will not comply with any
entitlement order or request to
withdraw any Collateral from the Securities
Account given by any party other
than Secured Party.
3.3 Upon
receipt of either written or oral notice from Secured Party:
(a)
Intermediary shall promptly cease complying
with entitlement orders and other
instructions concerning the Collateral,
including the Securities Account, from
all parties other than Secured Party; and
(b) Intermediary shall not make any
further distributions of any Collateral to
any party other than Secured Party,
nor permit any further voluntary changes in
the financial assets.
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4.
INTERMEDIARY'S ACKNOWLEDGMENTS. Intermediary acknowledges that:
4.1 The
Securities Account is maintained with Intermediary solely in
Customer's name.
4.2
Intermediary has no knowledge of any claim to, security interest in
or
lien upon any of the Collateral, except:
(a) the security interests in favor of
Secured Party; and (b) Intermediary's liens
securing fees and charges, or
payment for open trade commitments, as
described in the last paragraph of this
Section.
4.3 Any claim
to, security interest in or lien upon any of the Collateral
which Intermediary now has or at any time
hereafter acquires shall be junior and
subordinate to the security interests of
Secured Party in the Collateral, except
for Intermediary's liens securing: (a) fees
and charges owed by Customer with
respect to the operation of the Securities
Account; and (b) payment owed to
Intermediary for open trade commitments for
purchases in and for the Securities
Account.
5.
AGREEMENTS OF INTERMEDIARY AND CUSTOMER. Intermediary and
Customer
agree that:
5.1
Intermediary shall flag its books, records and systems to
reflect
Secured Party's security interests in the
Collateral, and shall provide notice
thereof to any party making inquiry as to
Customer's accounts with Intermediary
to whom or which Intermediary is legally
required or permitted to provide
information.
5.2
Intermediary shall send copies of all statements relating to
the
Securities Account simultaneously to
Customer and Secured Party.
5.3
Intermediary shall promptly notify Secured Party if any other
party
asserts any claim to, security interest in
or lien upon any of the Collateral,
and Intermediary shall not enter into any
control, custodial or other similar
agreement with any other party that would
create or acknowledge the existence of
any such other claim, security interest or
lien.
5.4 Without
Secured Party's prior written consent, Intermediary and
Customer shall not amend, modify or
terminate the Account Agreement, other than:
(a) amendments to reflect ordinary and
reasonable changes in Intermediary's fees
and charges for handling the Securities
Account; and (b) operational changes
initiated by Intermediary as long as they
do not alter any of Secured Party's
rights hereunder.
6.
MISCELLANEOUS.
6.1 This
Agreement shall not create any obligation or duty of
Intermediary
except as expressly set forth herein.
6.2 In the
event of any conflict between this Agreement and the Account
Agreement or any other agreement between
Intermediary and Customer, the terms of
this Agreement shall control.
6.3 All
notices, requests and demands which any party is required or
may
desire to give to any other party under any
provision of this Agreement must be
in writing (unless otherwise specifically
provided) and delivered to each party
at the address or facsimile number set
forth below its signature, or to such
other address or facsimile number as any
party may designate by written notice
to all other parties. Each such notice,
request and demand shall be deemed given
or made as follows: (a) if sent by hand
delivery, upon delivery; (b) if sent by
facsimile, upon receipt; and (c) if sent by
mail, upon the earlier of the date
of receipt or 3 days after deposit in the
U.S. mail, first class and postage
prepaid.
6.4 This
Agreement shall be binding upon and inure to the benefit of the
heirs, executors, administrators, legal
representatives, successors and assigns
of the parties. This Agreement may be
amended or modified only in writing signed
by all parties hereto.
6.5 This
Agreement shall terminate upon Intermediary's receipt of
written
notice from Secured Party expressly stating
that Secured Party no longer claims
any security interest in the
Collateral.
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6.6 This
Agreement shall be governed by and construed in accordance with
the laws of the State of Washington.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date
first set forth above.
WELLS FARGO BANK,
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
NATIONAL ASSOCIATION
acting through its
acting through its
Investment Group
Bellevue RCBO Office
By: /s/ LISA TONNA
By: /s/ JEREMY SMITH
____________________________
__________________________________
Jeremy Smith, Relationship Manager
Title: CLIENT ADMIN.
_________________________
Address: 205 108TH AVENUE, NE, SUITE 600
Address: 525 MARKET ST., 10TH FLOOR
BELLEVUE, WA 98004
SAN FRANCISCO, CA 94105 FAX
No.: (425)450-8069
FAX No.: (415)975-6012
Nastech Pharmaceutical Company Inc.
By:/s/ Steven Quay
----------------------------
Steven Quay, CEO
By:/s/ Greg Weaver
----------------------------
Greg Weaver, CFO
Address: 3450 MONTE VILLA PARKWAY
BOTHELL, WA 98021
FAX No.: (425) 908-3650
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SECURITY AGREEMENT
WELLS FARGO
SECURITIES ACCOUNT
1.
GRANT OF SECURITY INTEREST. For valuable consideration, the
undersigned
NASTECH PHARMACEUTICAL COMPANY INC., or any
of them ("Debtor"), hereby grants
and transfers to WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Bank") a security
interest in (a) Debtor's account no.
14756200 (whether held in Debtor's name or
as a Bank collateral account for the
benefit of Debtor), any sub-account
thereunder or consolidated therewith, and
all replacements or substitutions
therefor, including any account resulting
from a renumbering or other
administrative re-identification thereof
(collectively, the "Securities
Account") maintained with WELLS FARGO BANK,
NATIONAL ASSOCIATION, acting through
its Investment Group ("Intermediary"), (b)
all financial assets credited to the
Securities Account, (c) all security
entitlements with respect to the financial
assets credited to the Securities Account,
and (d) any and all other investment
property or assets maintained or recorded
in the Securities Account (with all
the foregoing defined as "Collateral"),
together with whatever is receivable or
received when any of the Collateral or
proceeds thereof are sold, collected,
exchanged or otherwise disposed of, whether
such disposition is voluntary or
involuntary, including without limitation,
(i) all rights to payment, including
returned premiums, with respect to any
insurance relating to any of the
foregoing, (ii) all rights to payment with
respect to any claim or cause of
action affecting or relating to any of the
foregoing, and (iii) all stock
rights, rights to subscribe, stock splits,
liquidating dividends, cash
dividends, dividends paid in stock, new
securities or other property of any kind
which Debtor is or may hereafter be
entitled to receive on account of any
securities pledged hereunder, including
without limitation, stock received by
Debtor due to stock splits or dividends
paid in stock or sums paid upon or in
respect of any securities pledged hereunder
upon the liquidation or dissolution
of the issuer thereof (hereinafter called
"Proceeds"). Except as otherwise
expressly permitted herein, in the event
Debtor receives any such Proceeds,
Debtor will hold the same in trust on
behalf of and for the benefit of Bank and
will immediately deliver all such Proceeds
to Bank in the exact form received,
with the endorsement of Debtor if necessary
and/or appropriate undated stock
powers duly executed in blank, to be held
by Bank as part of the Collateral,
subject to all terms hereof. As used
herein, the terms "security entitlement,"
"financial asset" and "investment property"
shall have the respective meanings
set forth in the Washington Uniform
Commerical Code.
2.
OBLIGATIONS SECURED. The obligations secured hereby are the payment
and
performance of: (a) all present and future
Indebtedness of-Debtor to Bank; (b)
all obligations of Debtor and rights of
Bank under this Agreement; and (c) all
present and future obligations of Debtor to
Bank of other kinds. The word
"Indebtedness" is used herein in its most
comprehensive sense and includes any
and all advances, debts, obligations and
liabilities of Debtor, or any of them,
heretofore, now or hereafter made, incurred
or created, whether voluntary or
involuntary and however arising, whether
due or not due, absolute or contingent,
liquidated or unliquidated, determined or
undetermined, and whether Debtor may
be liable individually or jointly, or
whether recovery upon such Indebtedness
may be or hereafter becomes
unenforceable.
3.
TERMINATION. This Agreement will terminate upon the performance of
all
obligations of Debtor to Bank, including
without limitation, the payment of all
Indebtedness of Debtor to Bank, and the
termination of all commitments of Bank
to extend credit to Debtor, existing at the
time Bank receives written notice
from Debtor of the termination of this
Agreement.
4.
OBLIGATIONS OF BANK. Bank has no obligation to make any loans
hereunder. Any money received by Bank in
respect of the Collateral may be
deposited, at Bank's option, into a
non-interest bearing account over which
Debtor shall have no control, and the same
shall, for all purposes, be deemed
Collateral hereunder. Bank shall have no
duty to take any steps necessary to
preserve the rights of Debtor against prior
parties, or to initiate any action
to protect against the possibility of a
decline in the market value of the
Collateral or Proceeds. Bank shall not be
obligated to take any action with
respect to the Collateral or Proceeds
requested by Debtor unless such request is
made in writing and Bank determines, in its
sole discretion, that the requested
action would not unreasonably jeopardize
the value of the Collateral and
Proceeds as security for the
Indebtedness.
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5.
REPRESEN
