definiens: shall mean and include each of the following : ( a ) Columbia shall fail to pay any fflll'WoIIloWIil, lPharmaBio when the same become due and payable to PbarmaBio ten ( 10 ) siness Days have elapsed following receipt of written notice of SUCD nt from PharmaBio to Columbia ; ( b ) Any material representation or warranty made by Columbia under this Agreement shall prove to have been untrue or incorrect in any material respect when made ; ( c ) Columbia shall fail to perform or comply with any material agreement or covenant made by Columbia under this Agreement in any material respect ; ( d ) Columbia shall sell, assign, license, lease or otherwise transfer all or substantially all of its assets or properties owned ( or otherwise held by it ) relating to the Product, in one or a series of related transactions, without the prior written consent ofPharmaBio ; ( e ) A Market Withdrawal shall occur ; ( f ) Columbi ived an Approval Letter for the Product from the FDA b ecember 19, 2003 ; ( g ) Columbia shall receive a Not Approvable Letter, and does not receive an Approval Letter for the Product within 6 months thereafter ; ( h ) Columbia shall ( i ) commence a voluntary case under the federal bankruptcy laws ( as now or hereafter in effect ), ( ii ) file a petition seeking to take advantage of any other Laws relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of debts, ( iii ) consent to or fail to contest in a timely and appropriate manner any petition filed against it in an involuntary case under such bankruptcy laws or other Laws, ( iv ) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, ( v ) admit in writing its inability to pay its debts as they become due, ( vi ) make a general assignment for the benefit of creditors, or ( vii ) take any corporate action for the purpose of authorizing any of the foregoing ; ( i ) A case or other proceeding shall be commenced against Columbia in any court of competent jurisdiction seeking ( i ) relief under the federal bankruptcy laws ( as now or hereafter in effect ) or under any other Laws relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts, or ( ii ) the appointment of a trustee, receiver, custodian, liquidator or the like for Columbia or any of its subsidiaries or for all or any substantial part of their respective assets, and such case or proceeding shan continue without dismissal or stay for a period of sixty ( 60 ) consecutive days, or an order granting the relief requested in such # Exhibit 10.40 Sbiant Royalty Agreement 6 CF1 - 00231619 case or proceeding ( including, but not limited to, an order for relief under such federal bankruptcy laws ) shall be entered ; or ( j ) Any indebtedness of Columbia or any of its subsidiaries in exc of $ 250,000 shall be declared to be due and payable, or required to be prepaJ.~·itJ = z:::==C : : : " stated maturity thereof, and Columbia shall fail to pay the same ' n fifteen ( 15 ) days of such declaration