SECURITIES ACCOUNT CONTROL AGREEMENT
EXHIBIT 10.46
This agreement, dated as of October 27, 2008 (this “Agreement”) sets forth the agreement
between DEUTSCHE BANK SECURITIES INC. (the “Intermediary”), BioMimetic Therapeutics, Inc., a
Delaware corporation (the “Debtor”), and Deutsche Bank AG, Cayman Islands Branch and its
affiliates referred to in Section 9 (the “Secured Party”). All references herein to the “UCC”
shall mean the Uniform Commercial Code as in effect in the State of New York.
Section 1. Establishment of Securities Account. The Intermediary hereby confirms
that:
1.1 Account Number and Name. The Intermediary has established account
number 5XR 209589 (hereinafter referred to as the “Securities Account”) and the account is
maintained in the name of the Debtor.
1.2 Status as a Securities Account. The Securities Account is a “securities
account” as such term is defined in Section 8-501(a)
of the UCC.
of the UCC.
Section 2. Maintenance of Securities Account.
2.1 Clearance and Settlement. Debtor and Secured Party understand and
agree that any clearing and settlement firm used by Intermediary in administering the
Securities Account is not authorized to accept, and Debtor and Secured Party agree not to attempt to
give, instructions to such firm. The Securities Account shall include any sub-accounts as may be
established for its proper administration and maintenance.
2.2 Securities Account.
2.2.1 The Securities Account will be used solely to hold financial assets
as collateral for the Secured Party provided that, in the sole discretion of Secured Party,
Secured Party may approve the trading of financial assets held in the Securities Account.
2.2.2 The Debtor understands and agrees that each of Intermediary (to secure the obligations
provided for in Section 3 below) and Secured Party has a lien on the Securities Account. Secured
Party has a first lien on the Securities Account. The Debtor agrees that no additional liens shall
be permitted without the prior written consent of the Secured Party.
2.3 Entitlement Orders Given by the Secured Party. If at any time the
Intermediary shall receive an entitlement order (as such term is defined in the UCC) in
substantially the form set forth as Exhibit A from the Secured Party directing transfer or
redemption of any financial asset credited to the Securities Account or any free credit
balances with respect to such Securities Account (hereinafter an “Entitlement Order”), the Intermediary
shall comply with such Entitlement Order without further consent by the Debtor or any other
person.
2.4 Debtor’s Rights to Instruct the Intermediary Prior to Delivery of a Notice
of Sole Control.
2.4.1 Securities Account. The Intermediary will not honor any
instructions from the Debtor with respect to (i) orders from the Debtor to redeem or transfer
financial assets in the Securities Account or (ii) orders from the Debtor to trade financial assets
in the Securities Account. However, Intermediary will honor instructions from the Debtor with
respect to the exercise of voting rights until Intermediary has received a written notice from
Secured Party that Debtor shall no longer be entitled to exercise such voting rights.
2.4.2 Entitlement Order. In the event that the Intermediary receives an
Entitlement Order from the Secured Party that is inconsistent with any order and/or instructions
received from the Debtor, the Intermediary shall honor the Entitlement Order of the Secured Party.
2.5 Notice of Sole Control. Without limiting the provisions of Section 2.4.1,
if at any time the Intermediary shall receive from the Secured Party a Notice of Sole Control in
substantially the form set forth in Exhibit B hereto, the Intermediary agrees that after receipt of
such notice, it will take all orders and instructions (including but not limited to instructions
and/or orders with respect to voting, selection of investments, redemption and transfer) with
respect to the Securities Account (or, if applicable, the specific security entitlements so identified
in such notice) solely from the Secured Party and thereafter shall not honor any orders or
instructions of the Debtor with respect to the Securities Account (or, if applicable, the specific
security entitlements so identified in such notice). In the event that a Notice of Sole Control
identifies only particular security entitlements, and not all security entitlements, with respect to
the Securities Account, the Secured Party may thereafter send one or more additional Notices of
Sole Control identifying additional securities entitlements.
2.6 [Intentionally Omitted.]
2.7 Intermediary’s Duties With_Respect_to Agreements between the Debtor and the Secured Party.
The Intermediary shall have no duty or obligation whatsoever of any
kind or character to determine whether or not an event of default exists under any agreement
between the Debtor and the Secured Party. The Intermediary shall honor Entitlement Orders
and/or a Notice of Sole Control irrespective of any knowledge of the Intermediary whether or
not an event of default shall exist or the Secured Party shall have any agreement with the Debtor
limiting or conditioning its right to give such Entitlement Orders or Notice of Sole Control.The
Intermediary shall have no duty to investigate the circumstances under which the Secured Party
is entitled to give any Entitlement Orders or Notice of Sole Control.
2.8 “Financial Assets” Election. The Intermediary hereby agrees that each
item of property, including cash, credited to the Securities Account on or after the date of the
Agreement shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the
UCC.
2.9 Statements. The Intermediary will send copies of all monthly statements
concerning the Securities Account and/or any financial assets credited thereto simultaneously to
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both the Debtor and the Secured Party. Such statements shall be sent to the Debtor and the
Secured Party at the address for each set forth in this Agreement.
2.10 Tax Reporting. All items of income, gain, expense and loss recognized in the
Securities Account shall be reported to the Internal Revenue Service and all state and local
taxing authorities under the name and taxpayer identification number of the Debtor.
Section 3. Intermediary’s Liens and Rights of Set-Off. In addition to the relative
priority of the security interests of the Intermediary and Secured Party in the Securities
Account, the Intermediary shall also have a security interest prior to that of Secured Party in
the Securities Account as and to the extent necessary to secure Intermediary for the payment of
any usual and customary commissions or fees owing to the Intermediary with respect to the
Securities Account. The Intermediary shall have rights of set-off with respect to the Securities
Account, however, the Intermediary shall not exercise any such right of set-off unless and until
the Intermediary notifies the Secured Party.
Section 4. Choice of Law.
4.1 Choice of Law. Both this Agreement and the Securities Account shall be
governed by, and construed in accordance with, the laws of the State of New York, without
regard to its conflict of laws principles. Regardless of any provision in any other agreement, for
purposes of the UCC, New York shall be deemed to be the Intermediary’s jurisdiction and the
Securities Account (as well as the security entitlements with respect to any financial assets
credited thereto) shall be governed by the laws of the State of New York.
4.2 Submission to Jurisdiction; Jury Waiver. EACH OF DEBTOR,
INTERMEDIARY AND SECURED PARTY HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A
JURY TRIAL IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT. In any action or proceeding arising out of or relating to this
Agreement, the parties hereto hereby irrevocably submit to the exclusive jurisdiction of the
courts of the State of New York and the federal courts in New York City, and agree that
effective service of process may be made by hand delivery or courier delivery as provided in Section 10
below on Notices. The Secured Party may proceed against the Debtor in any other applicable
jurisdiction, and may serve process in any other manner permitted by applicable law. Debtor
hereby irrevocably waives any objection Debtor may now or hereafter have to the laying of
venue in the aforesaid courts, and any claim that any of the aforesaid courts is an inconvenient
forum. To the extent that Debtor or Debtor’s property may have or hereafter acquire immunity,
on the grounds of sovereignty or otherwise, from any judicial process in connection with this
Agreement, Debtor hereby irrevocably waives, to the fullest extent permitted by applicable law,
any such immunity and agrees not to claim same. Debtor agrees that a final judgment in any
such action or proceeding shall be conclusive, and may be enforced in any other jurisdiction by
suit on the judgment or in any other permitted manner. Debtor further agrees that any action or
proceeding by Debtor against Secured Party or the Intermediary in respect to any matters arising
out of, or in any way relating to, this Agreement or the obligations of Debtor hereunder shall be
brought only in the State and County of New York.
Section 5. Conflict with Other Agreements.
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5.1 In the event of any conflict between this Agreement (or any portion
thereof) and any other agreement to which Intermediary is a party now existing or hereafter
entered into, the terms of this Agreement shall prevail,
5.2 No amendment or modification of this Agreement or waiver of any right
hereunder shall be binding on any party hereto unless it is in writing and is signed by all of
the parties hereto.
5.3 The Intermediary has not entered into, and until the termination of this
Agreement will not enter into, any agreement with any other person relating to the Securities
Account and/or any financial assets credited thereto pursuant to which it has agreed to comply
with entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of such other person.
5.4 The Intermediary has not entered into, and until the termination of this
Agreement will not enter into, any agreement with the Debtor or the Secured Party purporting
to limit or condition the obligation of the Intermediary to comply with Entitlement Orders as set
forth in Section 2.3 hereof.
Section 6. Representations, Warranties and Covenants of The Intermediary.
The Intermediary hereby makes the following representations, warranties and covenants:
6.1 Enforceable Agreement. This Agreement is the valid and legally binding
obligation of the Intermediary and the Intermediary shall not change the name or account
number of the Securities Account without the prior written consent of the Secured Party;
6.2 Adverse Claims. Except for the claims and interest of the Secured Party,
the Intermediary and the Debtor in the Securities Account, the Intermediary does not know of
any claim to, or interest in, the Securities Account or in any financial asset credited
thereto. If any person asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the Securities Account
or in any financial asset credited thereto, the Intermediary will promptly notify the Secured
Party and Debtor thereof.
Section 7. Indemnification of Securities Intermediary. Debtor and Secured Party hereby
agree that (a) the Intermediary is released from any and all liabilities to the Debtor and the
Secured Party arising from the terms of this Agreement and the compliance of the Intermediary with
the terms hereof, except to the extent that such liabilities arise from the Intermediary’s gross
negligence or willful misconduct (provided that Intermediary shall in no event be liable for any
incidental, consequential or punitive damages), and (b) the Debtor, its successors and assigns
shall at all times indemnify and save harmless the Intermediary and its affiliates and agents from
and against any and all claims, actions and suits of others arising out of the terms of this
Agreement or the compliance of the Intermediary with the terms hereof, except to the extent that
such arises from the gross negligence and willful misconduct of the Intermediary, its affiliates or
its agents, and from and against any and all liabilities, losses, damages, costs, charges, counsel
fees and other expenses of every nature and character arising by reason of the same (including any
fees or charges with respect to the Securities Account), until the termination of this Agreement.
Notwithstanding any provision to the contrary, the indemnification provided and any waiver set
forth in this Agreement shall not apply to any legal
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action between Debtor and Secured Party wherein Debtor asserts a right, claim or cause of action
that existed prior to the execution hereof, provided, however, that Debtor hereby agrees not to
raise, assert or otherwise interpose any defense, right of set off or counterclaim arising out of
or relating to the sale of items of collateral to the Debtor in any action or proceeding by Secured
Party to enforce any of its rights, claims or causes of action under or in respect of this
Agreement or in any action or proceeding by the Intermediary under or in respect of this Agreement.
Section 8. Assignments Prohibited. Each party hereto agrees that it shall not assign
its rights hereunder and any purported or attempted assignment of rights hereunder shall be null
and void and of no effect except the Secured Party may assign its interests hereunder to any
affiliate of Secured Party. If Secured Party assigns its interests to an affiliate, it must give
Debtor and Intermediary ten business day’s advance notice in writing.
Section 9. Successors. Subject to the provisions of Section 8 with respect to
voluntary assignment of its rights, the terms of this Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective corporate successors, assigns and
personal representatives who obtain such rights solely by operation of law.
Section 10. Notices. Any notice, request or other communication required or permitted
to be given under this Agreement shall be in writing and deemed to have been properly given when
delivered in person or when sent by facsimile and electronic confirmation of error free receipt is
received or two business days after being delivered to a reputable overnight delivery service for
next day delivery, addressed to the party at the address set forth below.
| Debtor: | ||||
| Name: | BioMimetic Therapeutics, Inc. | |||
| Address: | 000-X Xxxxxx Xxxx Xxxx | |||
| Xxxxxxxx, XX | ||||
| Attention: | Xxxxx Xxxxxxx, CFO | |||
| Telephone: | 000-000-0000 | |||
| Facsimile: | 000-000-0000 | |||
| Secured Party: | ||||
| Name: | Deutsche Bank AG, Cayman Islands Branch | |||
| Address: | 00 Xxxx Xxxxxx | |||
| Xxx Xxxx, XX 00000 | ||||
| c/o Private Wealth Management | ||||
| 6th Floor | ||||
| 000 Xxxx Xxxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Attention: | Xxxxxx X. Xxxx, Managing Director | |||
| Telephone: | 000-000-0000 | |||
| Facsimile: | 000-000-0000 | |||
| Intermediary: | ||||
| Name: | DEUTSCHE BANK SECURITIES, INC. | |||
| Address: | 000 XXXX XXX, 0xx Xxx., XX, XX 00000 | |||
| Telephone: | 000-000-0000 | |||
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| Facsimile: | 000-000-0000 | |||
| Attention: | Xxxx Xxxxx, Managing Director | |||
Any party may change its address for notices in the manner set forth above.
Section 11. Termination.
11.1 Termination of this Agreement. The obligations of the Intermediary to the
Secured Party pursuant to this Agreement shall continue in effect until the Secured Party has
notified the Intermediary of such termination in writing in substantially the form of Exhibit C
hereto. The termination of this Agreement shall not terminate the Securities Account or alter the
obligations of the Intermediary to the Debtor pursuant to any other agreement with respect to the
Securities Account.
11.2 Termination of Account. The Intermediary may, upon 30 days written
notice to Debtor and Secured Party, resign as Intermediary hereunder and transfer all financial
assets to another financial institution. The Secured Party shall have the right to identify the
financial institution and the account to which financial assets shall be transferred by sending an
Entitlement Order to the Intermediary at any time prior to the expiration of the thirtieth (30th) day
after written notice from the Intermediary is sent to the Secured Party. If the Intermediary has
not prior to the expiration of the 30th day received an Entitlement Order from the Secured Party
directing transfer, the Intermediary may honor an Entitlement Order from the Debtor. If neither
the Secured Party nor the Debtor has delivered a suitable Entitlement Order with respect to the
transfer of the financial assets credited to the Securities Account, the Intermediary may, at its
option, deposit the assets with a court of competent jurisdiction or establish a successor account
at another financial institution. Any such successor account established by the Intermediary at
another financial institution shall be maintained in the same name as the Securities Account; but
other than the name in which the account is maintained, the Intermediary shall have no
obligation to establish an account with the same or even similar terms as the Securities Account.
Section 12. Authorization to Debit Securities Account. The Debtor hereby authorizes
the Intermediary, and the Intermediary shall honor all instructions and orders from the Secured
Party, to make payments of moneys from the Securities Account as directed by the Secured Party in
connection with interest payments due to the Secured Party from the Debtor under the Note.
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Section 13. Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any party hereto may
execute this Agreement by signing and delivering one or more counterparts.
| BioMimetic Therapeutics, Inc. Debtor |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | President & CEO | |||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
| Deutsche Bank AG, Cayman Islands Branch |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxx Xxxx | |||
| Name: | Xxx Xxxx | |||
| Title: | Managing Director | |||
| Deutsche Bank Securities Inc. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Vice-President | |||
| By: | /s/ Xxxxxx X Xxxxxxxxx | |||
| Name: | Xxxxxx X Xxxxxxxxx | |||
| Title: | Director | |||
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Exhibit A
[Letterhead of Secured Party]
[Date]
[NAME AND ADDRESS OF THE INTERMEDIARY]
| Re: | Entitlement Order for Securities Account No.(the “Securities Account”) |
Ladies and Gentlemen:
As referenced in the Agreement, dated , 200___ (the “Agreement”), among
(the “Debtor”), you and the undersigned (a copy of which is attached),
pursuant to Section 2 of the Agreement, we hereby give you the following entitlement order with
respect to account number :
| o | Order to Redeem | ||
| You are hereby ordered to redeem the following financial assets: | |||
| Any proceeds received on redemption should be credited to the Securities Account. | |||
| o | Order to Transfer | ||
| You are hereby ordered to transfer the following financial assets from the Securities Account: | |||
| Such financial assets should be transferred by you to for credit to Account No. maintained in the name . |
| Very truly yours, [NAME OF SECURED PARTY] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
cc:
Exhibit B
[Letterhead of Secured Party]
[Date]
[NAME AND ADDRESS OF THE INTERMEDIARY]
| Re: | Notice of Sole Control for Securities Account No. |
Ladies and Gentlemen:
As referenced in the Agreement, dated , 200___ (the “Agreement”), among
(the “Debtor”), you and the undersigned (a copy of which is attached) we
hereby give you notice of our sole control over the following securities entitlements with respect
to securities account number (the “Securities Account”):
| o | All security entitlements with respect to all financial assets now or hereafter credited to the Securities Account. |
Select
One
One
| o | The security entitlements with respect to the following financial assets credited to
the Securities Account : |
||
You are hereby instructed not to accept any direction, instructions or entitlement orders with
respect to the security entitlements described above from any person other than the undersigned,
unless otherwise ordered by a court of competent jurisdiction.
You are instructed to deliver a copy of this notice by facsimile transmission to the Debtor.
| Very truly yours, [NAME OF SECURED PARTY] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
cc:
Exhibit C
[Letterhead of Secured Party]
[Date]
[NAME AND ADDRESS OF THE INTERMEDIARY]
| Re: | Termination of Agreement |
You are hereby notified that the Agreement, dated , 200___ (the
“Agreement”), among you, (the “Debtor”) and the undersigned (a copy of which is
attached) is terminated and you have no further obligations to the undersigned pursuant to such
Agreement. Notwithstanding any previous instructions to you, you are hereby instructed to
accept all future directions with respect to Securities Account number from the
Debtor. This notice terminates any obligations you may have to the undersigned with respect to
such account; however, nothing contained in this notice shall alter any obligations which you may
otherwise owe to the Debtor pursuant to any other agreement.
You are instructed to deliver a copy of this notice by facsimile transmission to [insert name
of Debtor].
| Very truly yours, [Name of Secured Party] |
||||
| By: | ||||
| Name: | ||||
cc:
