definiens: , in respect of any Person, means any other Person which, directly or indirectly through one or more intermediarie s, controls, is controlled by or is under common control with the subject Person, and a Person which has an entity which is an Affiliate under the foregoing shall also be deemed to be an Affiliate of such entity ; UAgreement " means this agreement of sale and assigmnent of rights and includes all exhibits, appendices and schedules hereto as an integra ] part hereof . as any of the foregoing or this Agreement are amended, modified, supplemented, restated or replaced from time to time ; means Asahi Kasei Phanna Corporation ; ~~~ ------ ---- m s the on ~ exclu sive atent license a reement dated as of April 1,2005 between the Vendor and s I ; means all of the Vendor 's right, title and interest in . to and under the following rights under the License Agreement and the Distribution Agreement : ( a ) the right to receive the Purchaser Royalty Interest ; ( b ) the right to receive Reports during the Tenn ; and ( c ) the right to inspect and audit the books and records ofNycomed under Section 7.8 of the License Agreement and under Section 15.11 of the Distributi on Agreement, as applicable . in respect of Royalties received during the Term ( including, for certainty, the right to select the auditor or independent certified public accountant in connection therewith ) and the right to receive a copy of the auditor 's report under Section 7.8.2 of the License Agreement and under Section 15.11.2 of the Distribution Agreement, as applicable ; means the bill of sale dated the date hereof delivered by the Vendor to the Purchaser at the Closing evidencing the sale, assignment, transfer, conveyance and delivery of the Assigned Rights to the Purchaser ; means any day that is not a Satwday, Sunday or other day on which banks are required or authorized by law to be closed in Toronto, Ontario or New York, New York ; TorN : 1930624.16 - 3 - means the Commonwea lth of Independent States, comprising as of the Effective Date of the License Agreement, Russia, Ukraine, Belarus, Kazakstan, Kyrgystan, Tajikistan, Turkmenistan, Uzbekistan, Armenia, Azerbaijan, Georgia and Moldovia ; has the meaning specified in Section 3.1 ; means any document, instrument, undertaking or agreement required under this Agreement to be delivered by the Vendor or the Purchaser at the Closing ; means any damage, loss, claim, cost, liability, demand or expense ( including reasonable out ~ of - p ocket expenses of investigation and reasonable legal fees and expenses in connection with any action, suit or proceeding ), but excluding punitive and consequential damages ; has the meaning specified in the License Agreemen t ; means the distributi on and license agreement dated April 20, 2004 between the Vendor and Nycomed, as amended on July I, 2004 and as further amended on JlU1e 5, 2007, in the fOffil that is attached to the License Agreement as Exhibit 20(a ) ; means any lien, charge, security interest . mortgage, option, privilege, pledge, trust or deemed trust ( whether contractual, statutory or otherwise arising ) or any other encumbrance, right or claim of any other Person of any kind whatsoever whether choate or inchoate, or any agreement ( whether written or oral ) to create any of the foregoing ; liEUFirst PaymentGautvik Agreement " means the urchase and sale a reement dated A rill, ] 996 tween Allelix lOp armaceutical s, Inc., Kaave M. utvik and Peter Alestrom ; means those patents purchased by the Vendor pursuant to the Gautvik Agreement ; means any government, regulatory or administrative agency or commission, governmental department, ministry, bureau, commission or agency, court, tribunal, goverrunental arbitrator or arbitration board or other similar body, or other goverrunenta l authority or instrumentality, whether federal, provincial, state or municipal ( domestic or foreign ) ; has the meaning specified in the License Agreement ; lIindemnificd party ' : 1930624.16 -4 - means all collections, recoveries, damages, awards, settlement payments or any other payments, compensation or consideration of any kind which are received by the Vendor and are intended as compensation for deemed Net Sales under Sections 9.7.2, 9.7.3 and 9.8.1 of the License Agreement and under Sections 8.6.2 and 8.6.3 of the Distribution Agreement, as applicable, in either case as a result of any litigation, arbitration or other legal proceeding to enforce the License Agreement or the Distributi on Agreem en~ as applicable, the Licensed Technology or the NPS Trademark s to the extent such litigation, arbitration or other legal proceeding results in payments arising from infringement of any of the Licensed Teclmology or the NPS Trademark s ; means the sales or deemed sales that give rise to an Infringem ent Payment ; means the actual knowledg e of the Vendor after due inquiry ; means the license agreement dated as of July 2, 2007 between NPS Allelix Corp. and Nycomed, including all schedules and exhibits thereto ; has the meaning specified in the License Agreement ; means a material adverse effect on : ( a ) the ability of the Vendor to perform its obligations under this Agreement, ( b ) the validity or enforceabilit y of this Agreement or the rights or remedies of the Purchaser hereunder, ( c ) the timing, amount or duration of tbe Royalties, ( d ) the Assigned Rights, or ( e ) the Products ; has the meaning specified in the License Agreement and further includes Infringem ent Sales ; has the meaning specified in Section 7.5 ; has the meaning specified in Section 7.5 ; has the meaning specified in Section 7.5 ; has the meaning specified in the License Agreement ; has the meaning specified in the License Agreement ; means Nycomed Danmark APS, a corporation existing under the laws of the Kingdom of Denmark and its successors or assigns ; means the consent to assignment agreement dated June 8, 2007 between Nycomed and the Vendor ; Tori ! : 1930624.16 · 5 · means the written direction of the Vendor to Nycomed dated as of the date hereof to pay the Purchaser Royalty Interest to the Purchaser Account and to deliver the Reports to the Purchaser ; means the EU, European countries outside EU, CIS and Turkey ; has the meaning specified on the first page of this Agreement ; means th evelopment agreement dated January 7, 2004 between e Vendor an psome in respect of Patent No . EP 1519766A ( filin date June 25, 2003 ) ; me Patents ( as such t ed in the License Agreement ) other tha atent No P 1519766A filin date June 25, 2003 ) ' means an individual, finn, corporation, company, limited liability company or other body corporate ( with or without share capital ), partnership . trust, joint venture, association, executor, administr ator or other legal representative, Governmenlal Authority or other entity or organization howsoever fonned ~ means the Personal Property Security Act ( Ontario ) and any successor statute, as in effect from time to time ; has the meaning specified in the License Agreement ; has the meaning specified in Section 2.2 ; has the meaning specified on tbe flIst page of this Agreement ; means the following account : Bank Name : Account Name : Account # : ABA # : Swift Code : HSBC National Bank USA Drug Royalty LP 3 I(OX ' ) I 021001088 MRMDUS33 means, in respect of any calendar year or part thereof occurring during the Term, the right to receive 100 % of the Royalties on Net Sales ; means the Royalty Reports and the reports or notices under Sections 7.6, 7.8, 9.4,9.6.1,9.6.2, 9.7.1,9.7.2,9.7.3,9 . 8.1 and 9.8.3 of the License Agreement and under Sections 8.5.1, 8.6.1, 8.6.2, 8.6.3, 8.6.4, 8.7.1, 15.9.1 and 15.11 of the Distributi on Agreement, as applicable ; means the following payments the Vendor is entitled ( 0 receive pursuant to the License Agreement and the Distribution Agreement, as applicable : TorII : 1930624.16 -6-(a ) all of the royalties payable by Nycomed in respect of the Net Sales of Products sold by Nycomed, its Affiliates Or Sublicensees anywhere in the Original Territory ( as calculated in accordance with the License Agreement or the Distribution Agreement, as applicable ) arising during the Tenn, including under Section 7.5 of the License Agreement and under Section 15.2 of the Distributi on Agreement, as applicable ; ( b ) any payments in respect of sales tbat . pursuant to Section 4.6 of the License Agreement, are to be included in Net Sales for purposes of Section 7.5 of the License Agreement, or that are deemed to be Net Sales pursuant to Section 7.3 of the License Agreement, and any gross profits recovered pursuant to Section 7.4 of the License Agreement ; ( c ) any interest on amounts referred to in clauses ( a ) and ( b ) above payable to the Vendor pursuant to the License Agreement, including under Section 7.9 of the License Agreement and under Section 15.9.4 of the Distribution Agreement, as applicable ; and ( d ) any Infringement Payments, but does not include any payments that the Vendor is entitled to receive pursuant to Section 7.2 of the License Agreement or Section 15.1 of the Distribution Agreement, as applicable . In addition, notwithstanding any of the foregoing to the contrary, the aggregate amount of the Royalties included within the Assigned Rights ( and conveyed to the Purchaser hereunder ) shall not exceed the amount that is 2.5 times the amount of the Purchase Price actually paid by the Purchaser to the Vendor under Section 2.3, provided that for purposes of this calculation the First Payment shall be deemed to be $ 50,000,000 ; means the reports Nycomed is required to furnish to the Vendor pursuant to Section 7.6 of the License Agreeme nt and Section 15.9.1 of the Distribution Agreement, as applicable ; means the security agreement dated as of the date hereof between the Vendor and the Purchaser ; means a sublicensee of Nycomed, including any distributor or subdistributor . as contemplated in the License Agreement ~ means the agreement dated February 24, 2005 between the Vendor and Nycomed with respect to the supply of Products and Devices by the Vendor to Nycomed, as amended on October 13, 2005 ; means the period from and including April I, 2007 up to and including the Terminati on Date ; has the meaning specified in Section 8 . ) ; has the meaning specified in Section 9.3 ; ToJ1l ' : 1930624_16 1.2 -7 - has the meaning specified on the first page ofthi5 Agreement ; and means the following account : Lehman Brothers Chase Manhattan Bank 1 Metrotech Center Brooklyn, NY 11201 ABA # 021000021 F AO Lehman Bros. Inc