**EXHIBIT 10.43****Execution Version**REVENUE INTEREST FINANCING AND WARRANT PURCHASE AGREEMENTDated as of January 28, 2008betweenARTES MEDICAL, INC.,andCOWEN HEALTHCARE ROYALTY PARTNERS, L.P.
 

 
**Table of Contents**           **Page**       ARTICLE I DEFINITIONS  1 Section 1.01 Definitions  1 ARTICLE II ASSIGNMENT OF REVENUE INTEREST AND WARRANT  14 Section 2.01 Assignment  14 Section 2.02 Payments by the Company  14 Section 2.03 Assignment Advance  15 Section 2.04 No Assumed Obligations  15 ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY  15 Section 3.01 Organization  16 Section 3.02 Corporate Authorization  16 Section 3.03 Governmental Authorization  16 Section 3.04 Ownership  16 Section 3.05 Subsidiaries and Capitalization  17 Section 3.06 Financial Statements  18 Section 3.07 No Undisclosed Liabilities  18 Section 3.08 Litigation  18 Section 3.09 Compliance with Laws  18 Section 3.10 Conflicts  19 Section 3.11 Subordination  19 Section 3.12 Intellectual Property  19 Section 3.13 Regulatory Approval  23 Section 3.14 Material Contracts  24 Section 3.15 Place of Business  24 Section 3.16 Broker’s Fees  24 Section 3.17 Insurance  24 Section 3.18 Solvency  24 Section 3.19 Other Information  25 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF CHRP  25 Section 4.01 Organization  25 Section 4.02 Authorization  25 
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**Table of Contents**(continued)           **Page** Section 4.03 Broker’s Fees  25 Section 4.04 Conflicts  25 ARTICLE V COVENANTS  26 Section 5.01 Consents and Waivers  26 Section 5.02 Access; Information  26 Section 5.03 Material Contracts  27 Section 5.04 Confidentiality; Public Announcement  27 Section 5.05 Security Agreement  28 Section 5.06 Further Assurance  28 Section 5.07 Put Option; Step-Down Option  29 Section 5.08 Remittance to and from the Collection Accounts  30 Section 5.09 License Agreements  32 Section 5.10 Intellectual Property  32 Section 5.11 Negative Covenants  33 Section 5.12 Future Agreements  33 Section 5.13 Insurance  33 Section 5.14 Notice  34 Section 5.15 Use of Proceeds  34 ARTICLE VI THE CLOSING; CONDITIONS TO CLOSING  35 Section 6.01 Closing  35 Section 6.02 Conditions Applicable to CHRP  35 Section 6.03 Conditions Applicable to the Company  37 ARTICLE VII TERMINATION  37 Section 7.01 Termination Date  37 Section 7.02 Effect of Termination  37 ARTICLE VIII MISCELLANEOUS  38 Section 8.01 Survival  38 Section 8.02 Future Equity Offerings  38 Section 8.03 Notices  38 Section 8.04 Successors and Assigns  39 
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**Table of Contents**(continued)           **Page** Section 8.05 Indemnification  40 Section 8.06 Independent Nature of Relationship  41 Section 8.07 Tax  41 Section 8.08 Entire Agreement  42 Section 8.09 Amendments; No Waivers  42 Section 8.10 Interpretation  42 Section 8.11 Headings and Captions  43 Section 8.12 Counterparts; Effectiveness  43 Section 8.13 Severability  43 Section 8.14 Expenses; Attorneys Fees  43 Section 8.15 Governing Law; Jurisdiction  43 Section 8.16 Waiver of Jury Trial  44 
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**EXHIBITS**     Exhibit A — Form of Assignment of Revenue InterestExhibit B(1) — Form of Comerica Deposit AgreementExhibit B(2)   Form of JPMorgan Deposit AgreementExhibit C — Form of Investor Rights AgreementExhibit D — Form of Note and Warrant Purchase AgreementExhibit E — Form of Revenue Interest Security AgreementExhibit F — Form of Second WarrantExhibit G — Legal Opinion of Heller Ehrman LLP (transaction opinion)Exhibit H — Legal Opinion of Heller Ehrman LLP (IP opinion)
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**REVENUE INTEREST FINANCING AND WARRANT PURCHASE AGREEMENT**     This **REVENUE INTEREST FINANCING AND WARRANT PURCHASE AGREEMENT**(as amended, supplemented orotherwise modified from time to time, this “Agreement”) is made and entered into as ofJanuary 28, 2008 by and between Artes Medical, Inc., a Delaware corporation, (the“Company”), and Cowen Healthcare Royalty Partners, L.P., a Delaware limited partnership(“CHRP”).     WHEREAS, the Company wishes to assign, convey and transfer to CHRP, and CHRP wishes to acceptthe assignment, conveyance, and transfer from the Company, the Revenue Interest (as hereinafterdefined), upon and subject to the terms and conditions hereinafter set forth; and     WHEREAS, as further inducement to enter into this Agreement, the Company wishes to issue toCHRP, and CHRP wishes to accept from the Company, the Second Warrant (as hereinafter defined).     **NOW, THEREFORE,**in consideration of the mutual covenants, agreements representations andwarranties set forth herein, the parties hereto agree as follows:**ARTICLE I****DEFINITIONS**     **Section 1.01****Definitions**.     The following terms, as used herein, shall have the following meanings:     “Additional Included Products” shall mean, as of any date of determination, fromOctober 1, 2007 through and until the end of the Term,     (a) prior to the date that the payments received and retained (i.e., not refundedpursuant to the true-up in Section 5.08(e) by CHRP) by CHRP under Sections2.02, 5.07(c) and 5.08 exceed *** Percent (***%) of theaggregate amount paid by CHRP under Section 2.03, any products not internallydeveloped (including in-licensed or purchased) by the Company or its Affiliates that areprimarily used for or have an FDA-approved indication in the field of cosmetic, aestheticor dermatologic procedures or any other non-disease-modifying cosmetic, aesthetic ordermatologic application including scar repair, non-surgical chin and nose augmentation,facial trauma repair (e.g. orbital tissue bulking) and treatment of HIV lipoatrophy, but,for the avoidance of doubt, excluding non-aesthetic, non-cosmetic and non-dermatologicapplications, such as for the treatment of GERD, urinary incontinence, spinaldisease/injury, sleep apnea or any other non-cosmetic, non-aesthetic and non-dermatologicuse that would require a Regulatory Approval Application in the Territory assuming that suchapplications are differentiated in terms of brand, formulation, dosing, etc. to the extentthat the products relating to such *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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applications are not substituted for or do notcannibalize the cosmetic, aesthetic and dermatologic applications; and     (b) from and after the date that the payments received and retained (i.e., notrefunded pursuant to the true-up in Section 5.08(e) by CHRP) by CHRP underSections 2.02, 5.07(c) and 5.08 are at least *** Percent(***%) of the aggregate amount paid by CHRP under Section 2.03, anyproducts not internally developed (including in-licensed or purchased) by the Company orits Affiliates that are primarily used for or have an FDA-approved indication as a dermalor soft tissue filler with: (i) an FDA-approved claim or data based on clinical trialresults published in the IFU or package insert, demonstrating semi-permanence (defined asefficacy equal to or greater than 18 months), or (ii) manufactured with an industryrecognized non-resorbable component (e.g. PMMA), or (iii) a resorbable component that isgenerally recognized by experts in the industry as providing wrinkle correction or dermalor soft tissue filling for at least 18 months, but, for the avoidance of doubt, excludingnon-aesthetic, non-cosmetic and non-dermatologic applications as described in clause (a)above.     “Additional Intellectual Property” shall mean all proprietary information; tradesecrets; know-how; confidential information; inventions (whether patentable or unpatentable andwhether or not reduced to practice or claimed in a pending patent application) and improvementsthereto; Patents; registered or unregistered trademarks, trade names, service marks, including allgoodwill associated therewith; registered and unregistered copyrights and all applications thereof;in each case that are owned, controlled by, issued to, licensed to, licensed by or hereafteracquired by or licensed by the Company or its Subsidiaries, but excluding the IntellectualProperty.     “Affiliate” shall mean any Person that controls, is controlled by, or is under commoncontrol with another Person. For purposes of this definition, “control” shall mean (i) inthe case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of thestock or shares having the right to vote for the election of directors, and (ii) in the case ofnon-corporate entities, direct or indirect ownership of at least fifty percent (50%) of the equityinterest with the power to direct the management and policies of such non-corporate entities.     “Agreement” shall have the meaning set forth in the first paragraph hereof.     “Applicable Percentage” shall mean, as of any date of determination, from October 1,2007 through and until the end of the Term,     (a) prior to the date that the payments received and retained (i.e., not refunded pursuant tothe true-up in Section 5.08(e) by CHRP) by CHRP under Sections 2.02,5.07(c) and 5.08 exceed *** Percent (***%) of the aggregate amount paid by CHRPunder Section 2.03, the following: *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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     (i) with respect to Net Product Sales in the Territory of up to and including ***dollars ($ *** ), *** percent (***%); and     (iii) with respect to Net Product Sales in the Territory in excess of *** dollars($***), *** percent (***%);     and     (b) from and after the date that the payments received and retained (i.e., not refundedpursuant to the true-up in Section 5.08(e) by CHRP) by CHRP under Sections 2.02,5.07(c) and 5.08 are at least *** Percent (***%) of the aggregate amount paidby CHRP under Section 2.03, *** percent (***%) of Net Product Sales in the Territory.     “Assignment of Revenue Interest” shall mean the Assignment of Revenue Interestpursuant to which the Company shall assign, convey and transfer to CHRP all of its rights andinterests in and to the Revenue Interest, which Assignment of Revenue Interest shall besubstantially in the form of Exhibit A.     “Audit Costs” shall mean, with respect to any audit of the books and records of theCompany and its Subsidiaries with respect to amounts payable or paid under this Agreement, theout-of-pocket cost of such audit payable to third parties, including all fees, costs and expensesincurred in connection therewith.     “Bankruptcy Event” shall mean the occurrence of any of the following:          (i) the Company or any Subsidiary shall commence any case, proceeding or other action (A)under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,insolvency, reorganization, relief of debtors or the like, seeking to have an order for reliefentered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seekingreorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or otherrelief with respect to it or its respective debts, or (B) seeking appointment of a receiver,trustee, custodian or other similar official for it or for all or any portion of its assets, or theCompany or any Subsidiary shall make a general assignment for the benefit of its respectivecreditors;          (ii) there shall be commenced against the Company or any Subsidiary any case, proceeding orother action of a nature referred to in clause (i) above which remains undismissed, undischarged orunbonded for a period of ninety (90) Business Days;          (iii) there shall be commenced against the Company or any Subsidiary any case, proceeding orother action seeking issuance of a warrant of attachment,execution, distraint or similar process against (A) all or substantially all of its assetsand/or (B) the Included Products or any substantial portion of the Intellectual Property, whichresults in the entry of an order for any such relief which shall not have been vacated, discharged,stayed, satisfied or bonded pending appeal within ninety (90) Business Days from the entry thereof; *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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          (iv) the Company shall take any action in furtherance of, or indicating its consent to,approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above;          (v) the Company shall generally not, or shall be unable to, or shall admit in writing itsinability to, pay its respective debts as they become due; or          (vi) the Company shall be in a financial condition at any time on or after January 1, 2011when the Company is not a “going concern,” such that the sum of its debts is greater than the fairmarket value of its property at such time.     “Business Day” shall mean any day other than a Saturday, a Sunday, any day which is alegal holiday under the laws of the State of New York, or any day on which banking institutionslocated in the State of New York are required by law or other governmental action to close.     “Change of Control” shall mean:          (i) the acquisition by any Person or group (within the meaning of Sections 13(d)(3) or14(d)(2) of the Securities Exchange Act of 1934) of beneficial ownership of any capital stock ofthe Company, if after such acquisition, such Person or group would be the “beneficial owner” (asdefined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, ofsecurities of the Company representing more than fifty percent (50%) of the combined voting powerof the Company’s then outstanding securities entitled to vote generally in the election ofdirectors;          (ii) the approval by the Company’s stockholders of a merger or consolidation of the Company,with any other Person, other than a merger or consolidation which would result in the Company’svoting securities outstanding immediately prior thereto continuing to represent (either byremaining outstanding or by being converted into voting securities of the surviving entity) morethan fifty percent (50%) of the combined voting power of the Company’s voting securities or suchsurviving entity’s voting securities outstanding immediately after such merger or consolidation;          (iii) the sale, lease, transfer, exclusive license or other disposition, in a singletransaction or series of related transactions, by the Company or any of its Subsidiaries of all orsubstantially all the assets of the Company and its Subsidiaries taken as a whole (including,without limitation, the Included Products) or the sale or disposition (whether by merger orotherwise) of one or more Subsidiaries of the Company if substantially all of the assets of theCompany and its Subsidiaries taken as a whole are held by such Subsidiary or Subsidiaries(including, without limitation, theIncluded Products), except where such sale, lease, transfer, exclusive license or otherdisposition is to a wholly owned Subsidiary of the Company; or          (iv) the sale, lease, license, transfer or assignment (or any attempt to do any of theforegoing) of all or any material portion of the Intellectual Property or Regulatory Approvals forthe Territory other than to a wholly owned Subsidiary of the Company,provided, however, that a transaction or series of transactions approved by the Company’s board ofdirectors in which the Company issues its equity securities and/or rights to acquire its equitysecurities to raise funds in support of its operations, shall not be deemed to be a Change of
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Control to the extent all equity securities and/or rights to acquire equity securities issuedpursuant to this sentence, when taken in the aggregate, represent less than (i) forty-nine percent(49%) of the Company’s then outstanding securities (determined on a fully-diluted, as if exercised,basis) entitled to vote generally in the election of directors if all investors are financialinvestors, or (ii) twenty percent (20%) of the Company’s then outstanding securities (determined ona fully-diluted, as if exercised, basis) entitled to vote generally in the election of directors ifone or more investors is a non-financial investor.     “CHRP” shall have the meaning set forth in the first paragraph hereof.     “CHRP Concentration Account” shall mean a segregated account in the name of CHRPestablished for the benefit of CHRP and maintained at the Deposit Bank pursuant to the terms of theJPMorgan Deposit Agreement and this Agreement. The CHRP Concentration Account shall be the accountinto which the funds held in the Joint Concentration Account which are payable to CHRP pursuant tothis Agreement are swept by the Deposit Bank in accordance with the terms of this Agreement and theJPMorgan Deposit Agreement.     “CHRP Indemnified Party” shall have the meaning set forth in Section 8.05.     “Closing” shall have the meaning set forth in Section 6.01.     “Closing Date” shall mean the date following the date hereof on which CHRP fulfillsits funding obligations pursuant to Section 6.03(d).     “Collateral” shall mean the property included in the definition of “Collateral” in theRevenue Interest Security Agreement.     “Collection Accounts” shall mean collectively, that certain lockbox account, thatcertain credit card account # ***      and that certain deposit account # ***, eachmaintained at the Collection Bank pursuant to the Comerica Deposit Agreement and this Agreement.Such lockbox and credit card accounts shall be the accounts into which all payments made in respectof the sales of the Included Products and the AdditionalIncluded Products are to be remitted. Such deposit account shall be the account into whichall amounts in such lockbox and credit card accounts shall be swept on a daily basis.     “Collection Bank” shall mean Comerica Bank.     “Comerica Deposit Agreement” shall mean the Comerica Deposit and Account ControlAgreement entered into by the Collection Bank, the Company and CHRP, substantially in the form ofExhibit B(1), pursuant to which, (i) the Collection Accounts will be maintained, (ii)“control”, within the meaning of the UCC, shall be established in favor of CHRP with respect to theCollection Accounts, and (iii) funds will flow from the Collection Accounts to the JointConcentration Account.     “Company” shall have the meaning set forth in the first paragraph hereof. *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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     “Company Concentration Account” shall mean a segregated account in the name of theCompany established and maintained at the Collection Bank pursuant to the terms of the ComericaDeposit Agreement and this Agreement. The Company Concentration Account shall be the account intowhich the funds remaining in the Joint Concentration Account after payment therefrom of the amountspayable to CHRP pursuant to this Agreement are swept in accordance with the terms of this Agreementand the JPMorgan Deposit Agreement.     “Company Indemnified Party” shall have the meaning set forth in Section 8.05.     “Confidential Information” shall mean, as it relates to the Company and its Affiliatesand the Included Products, the Additional Included Products, the Intellectual Property, theAdditional Intellectual Property, confidential business information, financial data and other likeinformation (including ideas, research and development, know-how, formulas, schematics,compositions, technical data, specifications, customer and supplier lists, pricing and costinformation, and business and marketing plans and proposals), inventory, ideas, algorithms,processes, computer software programs or applications (in both source code and object code form),client lists and tangible or intangible proprietary information or material, or such otherinformation that either party identifies to the other as confidential or the nature of which or thecircumstances of the disclosure of which would reasonably indicate that such information isconfidential. Notwithstanding the foregoing definition, Confidential Information shall not includeinformation that (i) is already in the public domain at the time the information is disclosed, (ii)thereafter becomes lawfully obtainable from other sources, (iii) is disclosed in any document filedwith any Governmental Authority or (iv) is disclosed under securities laws, rules and regulationsapplicable to the Company or CHRP, as the case may be, or pursuant to the rules and regulations ofany securities exchange or trading system on which securities of the Company may be listed fortrading.     “Daily Amount” shall have the meaning set forth in Section 2.02(a)(ii).     “Deposit Bank” shall mean JPMorgan Chase Bank, N.A. or such other bank or financialinstitution approved by each of CHRP and the Company and a party to any successor agreement to theJPMorgan Deposit Agreement.     “Dispute” shall have the meaning set forth in Section 3.12(k).     “Excluded Liabilities” shall have the meaning set forth in Section 2.04.     “FDA” shall mean the United States Food and Drug Administration or any successorfederal agency thereto.     “FDA Approval” shall mean approval by the FDA of the formulation, manufacture,marketing, sale and distribution of the Included Products in the Territory.     “Financial Statements” shall mean the audited consolidated balance sheets of theCompany and its Subsidiaries at December 31, 2006, 2005 and 2004, and the related auditedconsolidated statements of operations, stockholders’ equity and cash flows of the Company and itsSubsidiaries for the fiscal years ended December 31, 2006, 2005 and 2004, and the unauditedconsolidated balance sheet of the Company and its Subsidiaries at September 30, 2007 and therelated unaudited consolidated statements of operations, stockholders’ equity and cash flows of
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the Company and its Subsidiaries for the fiscal quarter ended September 30, 2007 and the accompanyingfootnotes thereto.     “Fiscal Quarter” shall mean a calendar quarter.     “Fiscal Year” shall mean a calendar year.     “GAAP” shall mean generally accepted accounting principles in the United States ineffect from time to time.     “Governmental Authority” shall mean any government, court, regulatory oradministrative agency or commission, or other governmental authority, agency or instrumentality,whether foreign, federal, state or local (domestic or foreign), including the Patent Office, theFDA, the United States National Institutes of Health, or any other government authority in anycountry.     “Included Products” shall mean, as of any date of determination, from October 1, 2007through and until the end of the Term,          (a) prior to the date that the payments received and retained (i.e., not refundedpursuant to the true-up in Section 5.08(e) by CHRP) by CHRP under Sections2.02, 5.07(c) and 5.08 exceed    ***    Percent (***%) of theaggregate amount paid by CHRP under Section 2.03, ArteFill®, and anyimprovements to ArteFill® (including new formulations thereof and combinationproducts thereto), and any internally developed products that are primarily used for orhave an FDA-approved indication in the field of cosmetic, aesthetic or dermatologic procedures orany other non-disease-modifying cosmetic, aesthetic or dermatologic application, includingscar repair, non-surgical chin and nose augmentation, facial trauma repair (e.g. orbitaltissue bulking) and treatment of HIV lipoatrophy, but, for the avoidance of doubt,excluding non-aesthetic, non-cosmetic and non-dermatologic applications, such as for thetreatment of GERD, urinary incontinence, spinal disease/injury, sleep apnea or any othernon-cosmetic, non-aesthetic and non-dermatologic use that would require a RegulatoryApproval Application in the Territory assuming that such applications are differentiated interms of brand, formulation, dosing, etc. to the extent that the products relating to suchapplications are not substituted for or do not cannibalize the cosmetic, aesthetic anddermatologic applications; and          (b) from and after the date that the payments received and retained (i.e., notrefunded pursuant to the true-up in Section 5.08(e) by CHRP) by CHRP underSections 2.02, 5.07(c) and 5.08 exceed    ***    Percent (***%) of theaggregate amount paid by CHRP under Section 2.03, ArteFill®, and anyimprovements to ArteFill® (including new formulations thereof and combinationproducts thereto), and any internally developed products that are primarily used for orhave an FDA-approved indication as a dermal or soft tissue filler with: (i) an FDA-approvedclaim or data based on clinical trial results published in the IFU or package insert,demonstrating semi- *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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permanence (defined as efficacy equal to or greater than 18 months), or(ii) manufactured with an industry recognized non-resorbable component (e.g. PMMA), or(iii) a resorbable component that is generally recognized by experts in the industry asproviding wrinkle correction or dermal or soft tissue filling for at least 18 months, but,for the avoidance of doubt, excluding non-aesthetic, non-cosmetic and non-dermatologicapplications as described in clause (a) above.     “Included Product Payments” with respect to the Included Products and the AdditionalIncluded Products means, for any period of determination, the sum of the following for such period:(i) the amounts actually received by the Company or any of its Affiliates to a Third Party withrespect to the sale of Included Products and the Additional Included Products by the Company or anyof its Affiliates in the Territory, (ii) the amounts actually received by the Company or any of itsAffiliates from a Third Party retained by the Company to distribute or sell the Included Productsand/or the Additional Included Products in the Territory (including any amounts actually receivedby the Company or its Affiliates under License Agreements), and (iii) collections in respect ofwrite-offs or allowances for bad debts in respect of items described in the preceding clauses (i)and (ii). For the avoidance of doubt and without limitation of the foregoing, Included ProductPayments shall include (A) all amounts actually received by the Company or any of its Affiliatesfrom a Third Party in connection with any marketing, royalty or manufacturing arrangement withrespect to the Included Products or the Additional Included Products in the Territory and (B) allamounts received in respect of any settlements, licenses or cross-licenses of the IntellectualProperty. For further avoidance of doubt, Included Product Payments shall not include amounts paidby BioForm Medical Inc. to the Company through the date of this Agreement pursuant to theSettlement and License Agreement, dated October 31, 2005, and the Second License Agreement,dated September 21, 2007.     “Intellectual Property” shall mean all proprietary information; trade secrets;know-how; confidential information; inventions (whether patentable or unpatentable and whether ornot reduced to practice or claimed in a pending patent application) and improvements thereto;Patents; registered or unregistered trademarks, trade names, service marks, including all goodwillassociated therewith; registered and unregistered copyrights and all applications thereof; in eachcase that are owned, controlled by, issued to, licensed to, licensed by or hereafter acquired by orlicensed by the Company or its Subsidiaries, in each case relating to, embodied by, covering orinvolving the Use of the Included Products or the Additional Included Products in the Territory.     “Investor Rights Agreement” shall mean the Investor Rights Agreement betweenCHRP and the Company substantially in the form of Exhibit C.     “Joint Concentration Account” shall mean a segregated account in the name of theCompany, subject to a control agreement in favor of CHRP, established for the benefit of theCompany and CHRP and maintained at the Deposit Bank pursuant to the terms of the JPMorgan DepositAgreement and this Agreement. The Joint Concentration Account shall be the account into whichCollection Bank sweeps the funds held in the deposit account described in the definition of“Collection Accounts”.     “JPMorgan Deposit Agreement” shall mean the Deposit and Account Control Agreemententered into by a Deposit Bank, the Company and CHRP, substantially in the form of ExhibitB(2), pursuant to which, (i) the Joint Concentration Account and the CHRP Concentration Accountshall be established, (ii) “control”, within the meaning of the UCC, shall be established
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in favor of CHRP with respect to the Joint Concentration Account, and (iii) funds will flow from theCollection Accounts into the Joint Concentration Account and from the Joint Concentration Accountinto the CHRP Concentration Account and the Company Concentration Account.     “Knowledge” shall mean the actual knowledge of an officer of the Company relating to aparticular matter. Notwithstanding the foregoing, an officer of the Company or any Affiliatethereof charged with responsibility for the aspect of the business relevant or related to thematter at issue shall be deemed to have knowledge of a particular matter if, in the prudentexercise of his or her duties and responsibilities in the ordinary course of business, such officershould have known of such matter.     “License Agreement” shall mean any existing or future license, development,commercialization, co-promotion, collaboration, distribution, manufacturing, marketing orpartnering agreement entered into by the Company or any of its Affiliates relating to the IncludedProduct in the Territory and/or under the Intellectual Property.     “Licensees” shall mean, collectively, the licensees, sublicensees or distributorsunder the License Agreements; each a “Licensee”.     “Liens” shall mean any lien, hypothecation, charge, instrument, license, preference,priority, security agreement, security interest, interest, mortgage, option, privilege, pledge,liability, covenant, order, tax, right of recovery, trust or deemed trust (whether contractual,statutory or otherwise arising) or any encumbrance, right or claim of any other person of any kindwhatsoever whether choate or inchoate, filed or unfiled, noticed or unnoticed, recorded orunrecorded, contingent or non-contingent, material or non-material, known or unknown.     “Losses” shall mean collectively, any and all claims, damages, losses, judgments,liabilities, costs and expenses (including reasonable expenses of investigation and reasonableattorneys’ fees and expenses in connection with any action, suit or proceeding).     “Material Adverse Change” shall mean, with respect to the Company, a material adversechange in the business, operations, assets, or financial condition of the Company and itsSubsidiaries taken as a whole.     “Material Adverse Effect” shall mean (i) the effect of a Material Adverse Change, (ii)a material adverse effect on the validity or enforceability of any of the Transaction Documents,(iii) a material adverse effect on the right of the Company to perform any of its obligations underany of the Transaction Documents, (iv) a material adverse effect on the rights or remedies of CHRPunder any of the Transaction Documents, (v) a material adverse effect on the right of CHRP toreceive the Revenue Interest, the First Warrant, the Second Warrant or any payment due to CHRParising under any Transaction Document, (vi) a material adverse effect on the ability of theCompany to Use the Included Product in the Territory, or (vii) a right to terminate or receivedamages inuring to the benefit of a Third Party arising with respect to any Material Contract;provided, however, that “Material Adverse Effect” shall exclude any effect resulting from (a)changes to general economic conditions or any condition affecting the cosmetic and plastic surgerymarkets generally, (b) war, hostilities, military actions or acts of terrorism, (c) any decision bythe FDA on the Company’s application to change the label for ArteFill® related to thefive-year efficacy labeling or to the removal of the skin testing requirement, (d) the announcementof this Agreement or the pendency or consummation of the transactions
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contemplated by the Transaction Documents, (e) any action taken by the Company or its Subsidiaries that is required bythe Transaction Documents, or the failure by the Company or its Subsidiaries to take any actionthat is prohibited by the Transaction Documents, or (f) changes in the price of (or trading volumein) the Company’s stock, in and of itself (it being understood that the underlying cause of, andthe facts, circumstances and/or occurrences giving rise to or contributing to any changes in theprice of (or trading volume in) the Company’s stock shall, to the same extent as if this definitionof Material Adverse Effect were written without this clause (f), constitute a Material AdverseEffect and/or be taken into account in determining whether there has been, is or would be aMaterial Adverse Effect).     “Material Contract” shall mean the contracts, agreements or other arrangements listedon Schedule 3.14 hereto to which either the Company or any of its Subsidiaries is a partyor any of the Company’s or its Subsidiaries’ respective assets or properties arebound or committed (other than the Transaction Documents) related to the Use of any IncludedProduct or the Intellectual Property (including each License Agreement).     “Net Product Sales” with respect to the Included Products and the Additional IncludedProducts shall mean, for any period of determination, the net product sales in the Territory forsuch period of determination as prepared by the Company in accordance with GAAP and as reported inthe Company’s financial statements contained in the Company’s quarterly or annual reports for suchperiod of determination. In calculating Net Product Sales, any transfer from the Company to anAffiliate shall be disregarded and the calculation shall instead be based on the first transfer toa Third Party.     “Note and Warrant Purchase Agreement” shall mean the Note and Warrant PurchaseAgreement between CHRP and the Company substantially in the form of Exhibit D.     “Note Security Agreement” shall mean the Note Security Agreement by and between theCompany and CHRP executed pursuant to the Note and Warrant Purchase Agreement.     “Obligations” shall mean any and all obligations of the Company and its Subsidiariesunder the Transaction Documents.     “Patent Office” shall mean the respective patent office, including the United StatesPatent and Trademark Office and any comparable foreign patent office, for any Patents.     “Patents” shall mean all patents, patent rights, patent applications, patentdisclosures and invention disclosures issued or filed, together with all reissues, divisions,continuations, continuations-in-part, revisions, extensions, and reexaminations thereof relating tothe Included Products or the Additional Included Products, their respective composition of matter,formulation, or methods of manufacture or use thereof that are issued or filed as of the datehereof as identified in Schedule 3.12(a)(i) and Schedule 3.12(a)(ii) or filedduring the Term, which are owned, controlled by, issued to, licensed to or licensed by the Companyor any of its Affiliates.     “Permitted Liens” shall have the meaning provided therefor in the Note and WarrantPurchase Agreement.
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     “Person” shall mean an individual, corporation, partnership, limited liabilitycompany, association, trust or other entity or organization, but not including a government orpolitical subdivision or any agency or instrumentality of such government or political subdivision.     “Put Option” shall have the meaning set forth in Section 5.07(a).     “Put Option Closing Date” shall have the meaning set forth in Section 5.07(a).     “Put Option Event” shall mean any one of the following events:          (i) any Change of Control;          (ii) any Bankruptcy Event; or          (iii) any breach of any representation, warranty or certification made by the Company or itsSubsidiaries in any of the Transaction Documents or certificates given by the Company in writingpursuant hereto or thereto which breach results in a Material Adverse Effect and which breach isnot cured by the Company within ten (10) days after the Company receives notice thereof or anyofficer of the Company becomes aware thereof; provided, however, that if the breach cannot by itsnature be cured within the ten (10) day period or cannot after diligent attempts by the Company becured within such ten (10) day period, and such breach is likely to be cured within a reasonabletime, then the Company shall have an additional reasonable period (which shall not in any caseexceed ten (10) days) to attempt to cure such breach; or          (iv) any breach of or default under any material covenant or agreement by the Company underany Transaction Document which breach or default results in a Material Adverse Effect and whichbreach or default is not cured by the Company within ten (10) days after the Company receivesnotice thereof or any officer of the Company becomes aware thereof; provided, however, that if thebreach or default cannot by its nature be cured within the ten (10) day period or cannot afterdiligent attempts by the Company be cured within such ten (10) day period, and such breach ordefault is likely to be cured within a reasonable time, then the Company shall have an additionalreasonable period (which shall not in any case exceed ten (10) days) to attempt to cure such breachor default; provided, however, that the Company shall not be entitled to a cure period under thisclause (iv) if the breach or default giving rise to the Put Option Event is the Company’s breach ordefault of its obligations under Sections 2.02, 5.07(c) or 5.08.     “Put Price” shall mean an amount that is the greater of:     (a) an amount that would generate an internal rate of return (utilizing thesame methodology utilized by the IRR function in Microsoft Excel) to CHRP of ***percent (***%) on all payments made by CHRP pursuant to Section2.03 as of the date of exercise of the Put Option, taking into account theamount and timing of all payments made by the Company to and received and retainedby *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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CHRP pursuant to Sections 2.02 and 5.08, prior to and as of thedate of payment of the Put Price, and     (b) an amount equal to     ***     percent (***%) of all payments made by CHRPpursuant to Section 2.03 as of such date, less an amount equal to theaggregate of all payments made by the Company and received and retained by CHRP(i.e. not refunded by CHRP) pursuant to Sections 2.02 and 5.08,prior to and as of the date of payment of the Put Price; provided,however that if the Put Option Event precipitating the exercise of the PutOption results, in whole or part, from the Company’s breach ofits obligations arising under Section 5.08, the JPMorgan DepositAgreement or the Comerica Deposit Agreement, then the Put Option Price shall becalculated on the basis that the percentages in these clause (a) and (b) shall haveequaled     ***     Percent (***%) and     ***     Percent (***%), respectively.     “Quarterly Report” shall mean, with respect to the relevant Fiscal Quarter of theCompany, (i) a report showing all payments made by the Company to CHRP under this Agreement duringsuch quarter and showing in detail the basis for the calculation of such payments, (ii) areconciliation of such report referred to in clause (i) above to all information and datadeliverable to the Company, CHRP or their Affiliates by the parties to any License Agreement,together with relevant supporting documentation and (iii) such additional information as CHRP mayreasonably request.     “Regulatory Agency” shall mean a Governmental Authority with responsibility for theapproval of the marketing and sale of pharmaceuticals in the United States or other regulation ofpharmaceuticals.     “Regulatory Approval Application” shall mean an application for Regulatory Approvalrequired before commercial sale or use of any Included Product as a drug or device in a regulatoryjurisdiction, including with respect to an NDA, PMA, supplemental NDA, 510(k), BLA, or any priorapproval supplement or amendment thereto submitted to the FDA.     “Regulatory Approval” shall mean all approvals (including, without limitation, whereapplicable, pricing and reimbursement approval and schedule classifications), product and/orestablishment licenses, registrations or authorizations of any Governmental Authority of aRegulatory Approval Application necessary for the manufacture, use, storage, import, export,transport, offer for sale, or sales of the Included Products in a regulatory jurisdiction.     “Revenue Interest” shall mean CHRP’s right to receive amounts equal to the ApplicablePercentage of the Net Product Sales pursuant to the terms and conditions of this Agreement.     “Revenue Interest Security Agreement” shall mean the Revenue Interest SecurityAgreement by and between the Company and CHRP providing for, among other things, the grant by theCompany in favor of CHRP of a valid continuing, perfected lien on and security interest in theRevenue Interest and the other Collateral described therein, which Security Agreement shall besubstantially in the form of Exhibit E.     “Revenue Rights” shall mean (A) with respect to any License Agreement, all of theCompany’s and its Subsidiaries’ rights under such License Agreement, including, without
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limitation, rights to receive payments in respect of sales of the Included Products in the Territory and (B)otherwise, all of the Company’s and its Subsidiaries’ rights, however derived, to receive paymentsin respect of sales of the Included Products in the Territory.     “Second Warrant” shall mean the Common Stock Purchase Warrant substantially in theform of Exhibit F.     “Step-Down Option” shall have the meaning set forth in Section 5.07(c).     “Step-Down Option Closing Date” shall have the meaning set forth in Section5.07(c).     “Step-Down Price” shall mean an amount equal to *** Percent (***%) ofall payments made by CHRP pursuant to Section 2.03 as of such date, less an amount equal tothe aggregate of all payments made by the Company and received and retained by CHRP (i.e. notrefunded by CHRP) pursuant to Sections 2.02 and 5.08, prior to and as of Step-DownOption Closing Date.     “Subsidiary” or “Subsidiaries” shall mean with respect to any Person (i) anycorporation of which the outstanding capital stock having at least a majority of votes entitled tobe cast in the election of directors under ordinary circumstances shall at the time owned, directlyor indirectly, by such Person or (ii) any other Person of which at least a majority voting interestunder ordinary circumstances is at the time, directly or indirectly, owned by such Person.     “Subsidiary Note Security Agreement” shall mean the Subsidiary Note Security Agreementby and between the Company’s domestic Subsidiary and CHRP executed pursuant to the Note and WarrantPurchase Agreement.     “Term” shall mean the period from and including the date hereof through and includingDecember 31, 2017, unless earlier terminated upon CHRP’s exercise of its Put Option pursuant toSection 5.07 or otherwise in accordance with the terms of this Agreement.     “Territory” shall mean the United States.     “Third Party” shall mean any Person other than the Company or CHRP or their respectiveAffiliates.     “Transaction Document” shall mean each of this Agreement, the Assignment of RevenueInterest, the Comerica Deposit Agreement, the JPMorgan Deposit Agreement, the Investor RightsAgreement, the Note and Warrant Purchase Agreement, the Revenue Interest Security Agreement, theSecond Warrant (together with all schedules, exhibits, amendments and other documents entered intoin connection hereto and thereto).     “Transfer” or “Transferred” shall mean any sale, conveyance, assignment,disposition, pledge, hypothecation or transfer.     “True-Up Statement” shall have the meaning set forth in Section 5.08(e)(i). *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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     “UCC” shall mean the Uniform Commercial Code (or any similar or equivalentlegislation) as in effect in any applicable jurisdiction.     “United States” shall mean the United States of America.     “Use” shall include the use, manufacture, marketing, sale, offer for sale,importation, distribution or commercialization.     “Year-to-Date Net Product Sales” shall have the meaning set forth in Section5.08(e)(i).**ARTICLE II****ASSIGNMENT OF REVENUE INTEREST AND WARRANT**     **Section 2.01****Assignment**.     Upon the terms and subject to the conditions set forth in this Agreement, the Company agreesto assign, transfer and convey to CHRP, and CHRP agrees to accept the assignment, transfer andconveyance from the Company, free and clear of all Liens (except Permitted Liens and the securityinterests created in favor of CHRP pursuant to the Revenue Interest Security Agreement, the NoteSecurity Agreement, the Subsidiary Note Security Agreement and any other Transaction Document) andsubject to the conditions set forth in Article VI, all of the Company’s rights and interests in andto the Revenue Interest and the Second Warrant on the Closing Date. CHRP’s ownership interest inthe Revenue Interest and the Second Warrant so assigned shall vest immediately upon the Company’sreceipt of the advance of payment for such Revenue Interest and Second Warrant pursuant toSection 2.03(a)(i).     **Section 2.02****Payments by the Company**.     (a) Payments in Respect of the Revenue Interest and the Second Warrant.          (i) CHRP shall be entitled to receive the Applicable Percentage in respect of Net ProductSales generated from October 1, 2007 through and until the end of the Term. In accordance with theterms of Section 5.08, (A) commencing on the date hereof, the Applicable Percentage inrespect of Included Product Payments shall be swept from the Joint Concentration Account into theCHRP Concentration Account on a daily basis (the “Daily Amount”) and (B) at the end of eachFiscal Quarter, the parties shall true-up the Company’s payments in respect of such Fiscal Quarteras provided in Section 5.08(e).          (ii) In addition to the payments of the Applicable Percentage, the Company shall be obligatedin all cases to pay CHRP, and CHRP shall be entitled to receive the following additional payments:               (A) an amount equal to Seven Million Five Hundred Thousand Dollars ($7,500,000), payable nolater than January 31, 2012, plus               (B) an amount equal to Seven Million Five Hundred Thousand Dollars ($7,500,000), payable nolater than January 31, 2013.
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     (b) Payment Procedure. Other than payments made pursuant to the Comerica DepositAgreement and the JPMorgan Deposit Agreement, any payments to be made by the Company to CHRPhereunder or under any other Transaction Document shall be made by wire transfer of immediatelyavailable funds.     **Section 2.03****Assignment Advance**.     (a) Consideration. In full consideration for the assignment by the Company of theRevenue Interest and the Second Warrant, and subject to the terms and conditions set forth herein,CHRP shall advance to the Company:          (i) fifteen million dollars ($15,000,000) at the time of Closing, and          (ii) an additional one million dollars ($1,000,000) if the Company achieves Net Product Salesof at least          ***          dollars ($***) in Fiscal Year 2008, which payment shall be made withinsixty (60) days of the date the Company files its Form 10-K with respect to Fiscal Year 2008 withthe Securities and Exchange Commission.For clarity, the Company shall not be entitled to any payment, and CHRP shall have no obligationsunder this Section 2.03(a)(ii) if the Company does not achieve Net Product Sales of atleast          ***     ($***) in Fiscal Year 2008.     (b) Payment Procedure. The payments to be made by CHRP under this Section2.03 shall be paid by wire transfer of immediately available funds to the account(s) designatedby the Company.     **Section 2.04****No Assumed Obligations**.     Notwithstanding any provision in this Agreement or any other writing to the contrary, CHRP isaccepting the assignment of only the Revenue Interest and the Second Warrant, and is not assumingany liability or obligation of the Company or any of its Affiliates of whatever nature, whetherpresently in existence or arising or asserted hereafter, whether under any Transaction Document orotherwise. All such liabilities and obligations shall be retained by and remain obligations andliabilities of the Company or its Affiliates (the “Excluded Liabilities”).**ARTICLE III****REPRESENTATIONS AND WARRANTIES OF THE COMPANY**     Each representation and warranty set forth below is qualified by the exceptions or disclosuresset forth in the disclosure schedule attached hereto (with specific reference to the section ofthis Agreement to which the information stated in such disclosure relates) (the “DisclosureSchedule”); provided, however, if any section of the Disclosure Schedule discloses information withsufficient detail and in a way as to make its relevance to the disclosure required on anothersection of the Disclosure Schedule readily apparent on its face, then the applicable *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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information will be deemed to have been disclosed in that other section of the Disclosure Schedule,notwithstanding the omission of a cross-reference in or to that other section. As of the Closing(except to the extent that any such representation or warranty is made as of a specific date, inwhich case such representation or warranty shall apply only as of such specified date), and subjectto the Disclosure Schedule, the Company represents and warrants to CHRP as follows:     **Section 3.01****Organization**.     Each of the Company and it Subsidiaries is a corporation duly incorporated, validly existingand in good standing under the laws of its state of organization, and has all corporate powers andall licenses, authorizations, consents and approvals required to carry on its business as nowconducted and as proposed to be conducted in connection with the transactions contemplated by theTransaction Documents. Except as set forth on Schedule 3.01, each of the Company and itsSubsidiaries is duly qualified to do business as a foreign corporation and is in good standing inevery jurisdiction in which the failure to do so would have a Material Adverse Effect.     **Section 3.02****Corporate Authorization**.     Each of the Company and its Subsidiaries has all necessary power and authority to enter into,execute and deliver the Transaction Documents and to perform all of the obligations to be performedby it hereunder and thereunder and to consummate the transactions contemplated hereunder andthereunder. The Transaction Documents have been duly authorized, executed and delivered by each ofthe Company and its Subsidiaries, as applicable, and each Transaction Document constitutes thevalid and binding obligation of such the Company and its Subsidiaries, as applicable, enforceableagainst it in accordance with their respective terms, subject, as to enforcement of remedies, tobankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rightsgenerally or general equitable principles.     **Section 3.03****Governmental Authorization**.     The execution and delivery by the Company and its Subsidiaries of the Transaction Documents,and the performance by them of their obligations hereunder and thereunder, does not require anynotice to, action or consent by, or in respect of, or filing with, any Governmental Authority,except for the filing of financing statements under the UCC, any required filings under federal andstate securities laws and any required filings with FINRA and the Nasdaq Stock Market.     **Section 3.04****Ownership**.     (a) Except as set forth on Schedule 3.04(a), the Company owns, or holds a validlicense under, all of the Intellectual Property and the Regulatory Approvals with respect to theUse of the Included Products in the Territory free and clear of all Liens, except for the PermittedLiens, and no license or covenant not to sue under any Intellectual Property or RegulatoryApprovals has been granted to any Third Party.     (b) Except as set forth on Schedule 3.04(b), the Company owns, or holds a validlicense under, all of the Additional Intellectual Property free and clear of all Liens, except forthe
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Permitted Liens, and no license or covenant not to sue under any Additional IntellectualProperty has been granted to any Third Party.     (c) Except as set forth on Schedule 3.04(a), the Company, immediately prior to theassignment of the Revenue Interest, owns, and is the sole holder of, all the Revenue Rights; andthe Company owns, and is the sole holder of, and/or has and holds a valid, enforceable andsubsisting license to, all of those other assets that are required to produce or receive anypayments from any Licensee or payor under and pursuant to, and subject to the terms of any LicenseAgreement, in each case free and clear of any and all Liens, except for the Permitted Liens andthose Liens created in favor of CHRP pursuant to Revenue Interest Security Agreement, the NoteSecurity Agreement, the Subsidiary Note Security Agreement and any other Transaction Document. TheCompany has not Transferred or agreed to Transfer any portion of the Revenue Rights other than ascontemplated by this Agreement. Except as set forth on Schedule 3.04(a), the Company hasthe full right to transfer, convey and assign to CHRP all of its rights and interests in and to theRevenue Interest pursuant to this Agreement without any requirement to obtain the consent of anyPerson. By the delivery to CHRP of the executed Assignment of Revenue Interest, the Company shalltransfer, convey and assign to CHRP all of its rights and interests in and to the Revenue Interest,free and clear of any Liens, except for the Permitted Liens and those Liens created in favor ofCHRP pursuant to the Revenue Interest Security Agreement, the Note Security Agreement, theSubsidiary Note Security Agreement and any other Transaction Document. At the Closing, and uponthe delivery of the Assignment of Revenue Interest to CHRP by the Company, CHRP shall have acquiredgood and valid rights and interests of the Company in and to the Revenue Interest, free and clearof any and all Liens, except for the Permitted Liens and those Liens created in favor of CHRPpursuant to the Revenue Interest Security Agreement, the Note Security Agreement, the SubsidiaryNote Security Agreement and any other Transaction Document.     **Section 3.05****Subsidiaries and Capitalization**.     (a) Except as set forth on Schedule 3.05(a), the Company has no Subsidiaries and ownsno equity interests or debt interests of any other Person.     (b) Except as set forth on Schedule 3.05(b), there are no options, warrants,convertible instruments or other rights held by any Person to acquire any equity interest (orinterest convertible or exchangeable for any equity interest) in the Company. The authorizedcapital stock of the Company consists of (i) 200,000,000 shares of Common Stock, par value $0.001per share, of which 16,514,163 shares are issued and outstandingas of the date hereof, and of which an additional 5,562,219 shares have been reserved for issuanceupon exercise or conversion of outstanding securities; and (ii) 10,000,000 shares of undesignatedpreferred stock, none of which are issued and outstanding or reserved for issuance upon exercise orconversion of securities.     (c) The shares of Common Stock issuable upon exercise of the Second Warrant will, when issued,in accordance with the exercise provisions of the Second Warrant, be duly and validly issued, fullypaid, non assessable and free and clear of all Liens, except any Liens created by or through you.
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     **Section 3.06****Financial Statements**.     The Financial Statements are complete and accurate in all material respects, were prepared inconformity with GAAP and present fairly in all material respects the financial position and thefinancial results of the Company and its Subsidiaries as of the dates and for the periods coveredthereby.     **Section 3.07****No Undisclosed Liabilities**.     Except for those liabilities (i) specifically identified on the face of the FinancialStatements, (ii) incurred by the Company and its Subsidiaries in the ordinary course of businesssince September 30, 2007, (iii) in connection with the Obligations under the Transaction Documents,(iv) disclosed in this Agreement (including those disclosed in Schedule 3.07), and (v)liabilities under the agreements listed as Exhibits in the Company’s filings on Form 10-K (for the12 month period ended December 31, 2006), Form 10-Q (for the quarterly period ended March 31,2007), Form 10-Q (for the quarterly period ended June 30, 2007), Form 10-Q (for the quarterlyperiod ended September 30, 2007), Form 8-K (filed on April 27, 2007) and Form 8-K (filed onSeptember 21, 2007) filed with the SEC, there are no material liabilities of the Company and itsSubsidiaries taken as a whole or individually, of any kind whatsoever, whether accrued, contingent,absolute, determined or determinable.     **Section 3.08****Litigation**.     Except as set forth on Schedule 3.08, there is no (i) action, suit, arbitrationproceeding, claim, investigation or other proceeding pending or, to the Knowledge of the Company,threatened against the Company or its Subsidiaries, or their licensees or sublicensees or (ii) anygovernmental inquiry pending or, to the Knowledge of the Company, threatened against the Company orits Subsidiaries, or their licensees or sublicensees, in each case with respect to clauses (i) and(ii) above, which, if adversely determined, would question the validity of, or could adverselyaffect the transactions contemplated by any of the Transaction Documents or could reasonably beexpected to have a Material Adverse Effect. Except as set forth on Schedule 3.08, there isno action, suit, claim, proceeding or investigation pending or, to the Knowledge of the Company,threatened against the Company, its Subsidiaries, or their licensees or sublicensees, or any otherPerson relating to the Included Products, the Intellectual Property, theAdditional Intellectual Property, the Regulatory Approvals, the Revenue Rights or the RevenueInterest.     **Section 3.09****Compliance with Laws**.     Except as set forth on Schedule 3.09, none of the Company and its Subsidiaries (i) isin violation of, has not violated, or to the Knowledge of the Company, is not under investigationwith respect to, and (ii) has not been threatened to be charged with or been given notice of anyviolation of any law, rule, ordinance or regulation of, or any judgment, order, writ, decree,permit or license entered by any Governmental Authority applicable to the Company, the RevenueInterest or the Revenue Rights which could reasonably be expected to have a Material AdverseEffect.
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     **Section 3.10****Conflicts**.     (a) Except as set forth in Schedule 3.10, neither the execution and delivery of any ofthe Transaction Documents nor the performance or consummation of the transactions contemplatedhereby and thereby will: (i) contravene, conflict with, result in a breach or violation of,constitute a default under, or accelerate the performance provided by, in any material respects anyprovisions of: (A) any law, rule, ordinance or regulation of any Governmental Authority, or anyjudgment, order, writ, decree, permit or license of any Governmental Authority, to which theCompany or any of its Subsidiaries or any of their respective assets or properties may be subjector bound; or (B) any contract, agreement, commitment or instrument to which the Company or any ofits Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of theirrespective assets or properties is bound or committed; (ii) contravene, conflict with, result in abreach or violation of, constitute a default under, or accelerate the performance provided by, anyprovisions of the certificate of incorporation or by-laws (or other organizational orconstitutional documents) of the Company or any of its Subsidiaries; (iii) except for the filing ofthe UCC-1 financing statements required hereunder, filings with federal and state authoritiesregarding the issuance of the Note and the Second Warrant and filings with the United States Patentand Trademark Office, require any notification to, filing with, or consent of, any Person orGovernmental Authority; (iv) give rise to any right of termination, cancellation or acceleration ofany material right or obligation of the Company or any of its Subsidiaries or any other Person orto a loss of any material benefit relating to the Revenue Rights or the Revenue Interest; or (v)result in the creation or imposition of any Lien on (A) the assets or properties of the Company orany of its Subsidiaries or (B) the Revenue Interest, the Revenue Rights, or any other Collateral,other than, with respect to clause (v) above, pursuant to the Revenue Interest Security Agreement,the Note Security Agreement and the Subsidiary Note Security Agreement.     (b) None of the Company and its Subsidiaries has granted, nor does there exist, any Lien(other than Permitted Liens) on the Revenue Rights, the Revenue Interest or any other Collateralother than pursuant to Revenue Interest Security Agreement, the Note Security Agreement and theSubsidiary Note Security Agreement.     **Section 3.11****Subordination**.     The claims and rights of CHRP created by any Transaction Document in and to the RevenueInterest, the Revenue Rights and any other Collateral are not and shall not be subordinated to anycreditor of the Company or its Subsidiaries or any other Person.     **Section 3.12****Intellectual Property**.     (a) Schedule 3.12(a)(i) sets forth an accurate, true and complete list (by categoryand family) of all (1) Patents and utility models, (2) trade names, common law trademarks, commonlaw service marks, registered trademarks, registered service marks, and applications for trademarkregistration or service mark registration, (3) registered and unregistered copyrights and (4)domain name registrations and websites, in each case with respect to clauses (1), (2), (3) and (4)above in this subsection (a) that are necessary or used to make, have made, use, sell, have sold,offer for sale, import, develop, promote, market, distribute, manufacture, commercialize orotherwise exploit the Included Products in the Territory by the Company, its Affiliates,manufacturers, distributors or Licensees, as applicable. Schedule 3.12(a)(ii) sets forthan
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accurate, true and complete list (by category and family) of all of the Company’s AdditionalIntellectual Property. For each item of Intellectual Property and Additional Intellectual Propertylisted on either Schedule 3.12(a)(i) or Schedule 3.12(a)(ii), the Company hasidentified (i) the owner, (ii) the countries in which such listed item is patented or registered orin which an application for Patent or registration is pending, (iii) the application number, (iv)the Patent or registration number, (v) the expiration date, as applicable, including any applicableterm extensions or supplemental protection certificates, if applicable, (vi) the earliest reliedupon priority filing date used to calculate the expiration date, and (vii) the due date(s) for anyapplicable maintenance, annuity or renewal fee. Except as disclosed therein, each item ofIntellectual Property (other than the Patent applications) listed on Schedule 3.12(a)(i) isvalid, enforceable and subsisting and no listed Intellectual Property has lapsed, expired, beencancelled or become abandoned. The Patent applications listed in Schedule 3.12(a)(i) havebeen and continue to be prosecuted by competent Patent counsel in a diligent manner. Each of thePatents and Patent applications listed in Schedule 3.12(a)(i) correctly identifies each andevery inventor of the claims thereof as determined in accordance with the laws of the jurisdictionin which such Patent is issued or such Patent application is pending. Except as set forth inSchedules 3.04(a) and 3.04(b), each Person who has or has had any rights in or tothe Intellectual Property listed on Schedule 3.12(a)(i) that are owned by, or licensed to,the Company or one of its Subsidiaries, including, each inventor named on the Patents and Patentapplications listed in Schedule 3.12(a)(i), has executed an agreement assigning his, her orits entire right, title and interest in and to such Intellectual Property, and the inventionsembodied, described and/or claimed therein, to the purported owner and no such Person has anycontractual or other obligation that would preclude or conflict with any such assignment orotherwise conflict with the obligations of such Person to the applicable owner of each listedIntellectual Property.     (b) Schedule 3.12(b) sets forth an accurate, true and complete list of all agreements,whether oral or written, express or implied, including, without limitation,assignments, licenses, options, franchise, distribution, marketing and manufacturingagreements, sponsorships, project agreements, collaboration agreements, joint developmentagreements, agreements not to enforce, consents, settlements, assignments, Liens or mortgages, andany amendments(s) renewal(s), novation(s) and termination(s) pertaining thereto, in each casepursuant to which the Company has the legal right to exploit Intellectual Property that is notcurrently owned by the Company. There are no unpaid fees or royalties under any agreement listedon Schedule 3.12(b) that have become due, or are expected to become overdue, as of theClosing Date.     (c) Each agreement listed in Schedule 3.12(b) is legal, valid, binding, enforceable,and in full force and effect. None of the Company or its Subsidiaries is in breach of such listedagreements and, no circumstances or grounds exist that would give rise to a claim of breach orright of rescission, termination, revision, or amendment of any of the agreements specified inSchedule 3.12(b), including, without limitation, the execution, delivery and performance ofthis Agreement and the other Transaction Documents.     (d) Except for Intellectual Property licensed to the Company or one of its Subsidiariespursuant to any agreement listed on Schedule 3.12(b) and Intellectual Property owned by theCompany or its Subsidiaries, no other Intellectual Property is necessary or desirable to make, havemade, offer to sell, sell, have sold, use, import, make public, reproduce, transmit, extract,distribute, commercialize or market the Included Products in the Territory. The Company and itsSubsidiaries has the full, legal right to make, have made, use, sell, have sold, offer for sale,import, develop, distribute, manufacture, commercialize, market or otherwise exploit the
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IncludedProducts in the Territory, without infringing any intellectual property right that is owned byanother Person or a Third Party.     (e) Except as set forth on Schedule 3.12(e), the Company and its Subsidiaries possesssole, exclusive, valid, marketable and unencumbered title to the Intellectual Property for whichone of them is listed as the owner on Schedule 3.12(a)(i), and is or these predecessors area party to the agreements listed on Schedule 3.12(b); all assignments from each inventor,as the case may be, to the Company or one of its Subsidiaries or to a predecessor in interest ofthe Company, have been executed and recorded for each of the Patents listed on Schedule3.12(a)(i); there are no Liens (other than Permitted Liens) on or to any Intellectual Propertylisted on Schedule 3.12(a)(i) that it owns or agreements listed on Schedule3.12(b).     (f) The Company or one of its Subsidiaries has the full right, power and authority to grantall of the rights and interests granted to CHRP in this Agreement and to its Licensees under anyexisting License Agreement.     (g) There are no unpaid maintenance, annuity or renewal fees currently overdue for any of theIntellectual Property listed on Schedule 3.12(a)(i), nor have any applications orregistrations therefor lapsed or become abandoned, been cancelled or expired.     (h) Each owner and inventor of each Patent and the Company or one of its Subsidiaries (to theextent that the Company or one of its Subsidiaries is an applicant or is otherwise involved in thePatent prosecution of any Patent) have complied in all material respects with all applicable dutiesof candor and good faith in dealing with any Patent Office, including the duty to disclose to anyapplicable Patent Office all information known to be material to patentability.     (i) No payments by the Company or any of its Subsidiaries are, or at any time in the futureexpected to, become due to any other Person in respect of the Use of the Included Products in theTerritory or the Intellectual Property.     (j) Except as set forth on Schedule 3.12(j), none of the Company, its Subsidiaries orany other Person has undertaken or omitted to undertake any acts, and no circumstance or groundsexist, that would invalidate, reduce or eliminate, in whole or in part, the enforceability or scopeof (i) any Intellectual Property or, in the case of Intellectual Property owned or licensed by theCompany or its Subsidiaries, the Company’s or its Subsidiaries’ entitlement to exclusively exploitsuch Intellectual Property, or (ii) the Company’s or its Subsidiaries’ right to enjoy payments madein respect of sales of the Included Products in the Territory or other revenues from anyIntellectual Property.     (k) Except as set forth on Schedule 3.12(k), there is, and has been, no pending,decided or settled opposition, interference proceeding, reexamination proceeding, cancellationproceeding, injunction, claim, lawsuit, proceeding, hearing, investigation, complaint, arbitration,mediation, demand, International Trade Commission investigation, decree, or any other dispute,disagreement, or claim (individually referred to hereinafter as a “Dispute”), nor has anysuch Dispute been threatened challenging the legality, validity, enforceability or ownership of anyIntellectual Property or which would give rise to a credit against the revenues or royalties due tothe Company or one of its Subsidiaries for the manufacture, sale offer for sale, use, importationor exportation of the Included Products in the Territory or the exploitation of the licensed
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Intellectual Property in the Territory and no circumstances or grounds exist that would give riseto such a Dispute. Except as set forth on Schedule 3.12(k), there are no Disputes by anyPerson or Third Party against the Company or its Subsidiaries, their Licensees or their licensors,and neither the Company nor any of its Subsidiaries has received any written notice or claim of anysuch Dispute, and, there exists no circumstances or grounds upon which any such claim could beasserted, as pertaining to the Use of the Included Products in the Territory. Except as set forthon Schedule 3.12(k), none of the Company, its Subsidiaries or their licensors has sent anynotice of any such Dispute to a Third Party, and there exists no circumstance or grounds upon whichthe Company, its Subsidiaries or their licensors could assert any such claim, as pertaining to theUse of the Included Products in the Territory. Except as set forth on Schedule 3.12(k), noIntellectual Property or Included Product is subject to any outstanding injunction, judgment,order, decree, ruling charge, settlement or other disposition of Dispute, and the Company and itsSubsidiaries have fully complied with, paid and otherwise satisfied all such obligations.     (l) There is no pending or threatened action, suit, or proceeding, or any investigation orclaim by any Governmental Authority in the Territory to which the Company or its Subsidiaries are aparty (1) that would be the subject of a claim for indemnification by any Person or Third Partyunder any agreement, or (2) that the marketing, sale or distribution of the Included Products inthe Territory by the Company, its Subsidiaries or their Licensees pursuant to the related LicenseAgreement, as applicable, does or will infringe on any patent or other intellectual property rightsof any other Person, and there is no basis for any such action, suit, proceeding, investigation orclaim of the type described in clause (1) or (2) above. To the Company’s Knowledge, there are nopending published or unpublished United States, international or foreign patent applications ownedby any other Person, which, if issued, would limit or prohibit, in any material respect, the use ofthe Included Products in the Territory or the licensed Intellectual Property relating to theIncluded Products in the Territory.     (m) Except as set forth on Schedule 3.12(m), the Company and its Subsidiaries havetaken, and will continue to take, all commercially reasonable measures and precautions necessary toprotect and maintain (1) the confidentiality of all Intellectual Property (except such IntellectualProperty whose value would be unimpaired by public disclosure) that it owns and (2) the value ofall Intellectual Property and assets related to the Use of the Included Products in the Territory.     (n) No material trade secret of the Company and its Subsidiaries has been published ordisclosed to any Person except pursuant to a written agreement requiring such Person to keep suchtrade secret confidential.     (o) To the Company’s Knowledge, there are no pending United States or foreign patentapplications which, if granted, would limit or prohibit the ability of the Company or itsSubsidiaries to make, have made, use, sell, offer for sale or import the Included Products in theTerritory for the purposes currently contemplated by the Company and its Subsidiaries under thisAgreement.     (p) The Company and its Subsidiaries have previously provided to CHRP, pursuant to a JointDefense/Common Interest Agreement, copies of all written opinions of counsel with respect to anyThird Party intellectual property rights relating to the Included Products, including allfreedom-to-operate, product clearance or right-to-use opinions and assessments to the extent in thepossession of, or otherwise obtained by, the Company and its Subsidiaries.
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     **Section 3.13****Regulatory Approval**.     (a) The Company and its Subsidiaries have made available to CHRP all of the followingdocuments that the Company and its Subsidiaries have received in any form from any contract partyto any License Agreement:          (i) all regulatory correspondence, written notes in respect of telephone communications,electronic communications, copies of all submissions to any active regulatory files regardingpreclinical, clinical, manufacturing, adverse events, any notices and forms received by a contractparty from appropriate Regulatory Agencies relating to compliance, developmental (including safety,efficacy and potency), marketing, promotion or manufacturing activities concerning the IntellectualProperty or the Use of the Included Products in the Territory;          (ii) correspondence or reports from both internal corporate employees and non-governmentalconsultants relating to any of the regulatory and/or product liability exposures, marketing andreimbursement strategies, manufacturing (i.e., annual audit reports), preclinical and clinical dataissues concerning the Included Products in the Territory; and          (iii) any information or communication that would indicate that any Regulatory Agency (A) isnot likely to approve any application with respect to the Included Products, (B) is likely torevise or revoke any current approval granted by any Regulatory Agency with respect to the IncludedProducts, or (C) is likely to pursue compliance actions against the Company, its Subsidiaries orany contract party relating to a License Agreement.     (b) Except as set forth on Schedule 3.13(b), the Company and its Subsidiaries are inmaterial compliance with, and have materially complied with, all applicable federal, state, localand foreign laws, rules, regulations, standards, orders and decrees governing its business,including all regulations promulgated by each Regulatory Agency in the Territory, the failure ofcompliance with which could reasonably be expected to result in a Material Adverse Effect; theCompany and its Subsidiaries have not received any notice citing action or inaction by any of themthat would constitute any material non-compliance with any applicable federal, state, local andforeign laws, rules, regulations, or standards, which could reasonably be expected to result in aMaterial Adverse Effect; and to the Company’s Knowledge, no prospective change in any applicablefederal, state, local or foreign laws, rules, regulations or standards has been adopted which, whenmade effective, could reasonably be expected to result in a Material Adverse Effect.     (c) The studies, tests and preclinical and clinical trials conducted relating to the IncludedProducts by or on behalf of the Company or its Subsidiaries were and, if still pending, are beingconducted in all material respects in accordance with experimental protocols, procedures andcontrols pursuant to, where applicable, accepted professional and scientific standards; thedescriptions of the results of such studies, tests and trials provided to CHRP are accurate in allmaterial respects; and the Company and its Subsidiaries have not received any notices orcorrespondence from any Regulatory Agency or comparable authority requiring the termination,suspension, or material modification or clinical hold of any such studies, tests or preclinical orclinical trials conducted by or on behalf of the Company or its Subsidiaries, which termination,suspension, material modification or clinical hold could reasonably be expected to result in aMaterial Adverse Effect.
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     **Section 3.14****Material Contracts**.     Neither the Company nor any of its Subsidiaries is in breach of or in default under anyMaterial Contract related to the Included Products, which default, individually or in theaggregate, would result in a Material Adverse Effect. To the Knowledge of the Company, nothing hasoccurred and no condition exists that would permit any other party thereto to terminate anyMaterial Contract related to the Included Products. Neither the Company nor any of itsSubsidiaries has received any notice or, to the Knowledge of the Company, any threat of terminationof any such Material Contract. To the Knowledge of the Company, no other party to a MaterialContract is in breach of or in default under such Material Contract. All Material Contracts arevalid and binding on the Company and its Subsidiaries and, to the Knowledge of the Company, on eachother party thereto, and are in full force and effect. Schedule 3.14 is a complete list of allcontracts, agreements or other arrangements to which either the Company or any of its Subsidiariesis a party or any of the Company’s or its Subsidiaries’ respective assets or properties are boundor committed (other than the Transaction Documents) related to any Included Product or theIntellectual Property (including each License Agreement) and for which a breach or violation by theCompany could reasonably be expected to result in a Material Adverse Effect.     **Section 3.15****Place of Business**.     The Company’s principal place of business and chief executive office are set forth onSchedule 3.15.     **Section 3.16****Broker’s Fees**.     The Company and its Subsidiaries have not taken any action that would entitle any Person toany commission or broker’s fee in connection with the transactions contemplated by the TransactionDocuments.     **Section 3.17****Insurance**.     There are in full force and effect insurance policies maintained by the Company and itsSubsidiaries with an insurance company rated not less than “A-” by A.M. Best Company, Inc., withcoverages and in amounts customary for companies of comparable size and condition similarlysituated in the same industry as the Company and its Subsidiaries, including product liabilityinsurance, directors and officers insurance and insurance against liability, subject only to suchexclusions and deductible items as are usual and customary in insurance policies of such type. TheCompany and its Subsidiaries have named CHRP as an additional insured party with respect to itsgeneral liability and product liability insurance policies. A schedule of the Company’s and itsSubsidiaries’ insurance policies is attached hereto as Schedule 3.17.     **Section 3.18****Solvency**.     None of the Company nor its Subsidiaries is “insolvent” as defined in any statute of theUnited States Bankruptcy Code or in the fraudulent conveyance, fraudulent transfer or similarstatutes or laws of the States of New York or Delaware. Assuming consummation of the transactionscontemplated by the Transaction Documents, the present fair saleable value of each
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of the Company and its Subsidiaries’ assets is greater than the amount required to pay its debts as they becomedue.     **Section 3.19****Other Information****.**     No written statement, information, report or materials prepared by or on behalf of the Companyor its Subsidiaries and furnished to CHRP by the Company or its Subsidiaries in connection with anyTransaction Document or any transaction contemplated hereby or thereby, no written representation,warranty or statement made by the Company and its Subsidiaries in any Transaction Document, and noSchedule or Exhibit hereto, in each case taken in the aggregate, and as updated through the date ofthis Agreement, contains any untrue statement of a material fact or omits any statement of materialfact necessary in order to make the statements made therein in light of the circumstances underwhich they were made not misleading.**ARTICLE IV****REPRESENTATIONS AND WARRANTIES OF CHRP**     CHRP represents and warrants to the Company the following:     **Section 4.01****Organization**.     CHRP is a limited partnership duly formed and validly existing under the laws of the State ofDelaware.     **Section 4.02****Authorization**.     CHRP has all necessary power and authority to enter into, execute and deliver the TransactionDocuments and to perform all of the obligations to be performed by it hereunder and thereunder andto consummate the transactions contemplated hereunder and thereunder. The Transaction Documentshave been duly authorized, executed and delivered by CHRP and each Transaction Document constitutesthe valid and binding obligation of CHRP, enforceable against CHRP in accordance with theirrespective terms, subject, as to enforcement of remedies, to bankruptcy, insolvency,reorganization, moratorium or similar laws affecting creditors’ rights generally or generalequitable principles.     **Section 4.03****Broker’s Fees**.     CHRP has not taken any action that would entitle any Person to any commission or broker’s feein connection with the transactions contemplated by the Transaction Documents.     **Section 4.04****Conflicts**.     Neither the execution and delivery of this Agreement or any other Transaction Document nor theperformance or consummation of the transactions contemplated hereby or thereby will: (i)contravene, conflict with, result in a breach or violation of, constitute a default under, oraccelerate the performance provided by, in any material respects any provisions of: (A) any law,rule or regulation of any Governmental Authority, or any judgment, order, writ, decree, permit orlicense of any Governmental Authority, to which CHRP or any of its assets or properties may besubject or bound; or (B) any contract, agreement, commitment or instrument to which CHRP is a
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partyor by which CHRP or any of its assets or properties is bound or committed; (ii) contravene,conflict with, result in a breach or violation of, constitute a default under, or accelerate theperformance provided by, any provisions of the organizational or constitutional documents ofCHRP; or (iii) require any notification to, filing with, or consent of, any Person orGovernmental Authority.**ARTICLE V****COVENANTS**     During the Term, the following covenants shall apply:     **Section 5.01****Consents and Waivers**.     The Company shall use its best efforts to obtain and maintain any required consents,acknowledgements, certificates or waivers so that the transactions contemplated by this Agreementor any other Transaction Document may be consummated and shall not result in any default or breachor termination of any of the Material Contracts.     **Section 5.02****Access; Information**.     (a) Promptly after receipt by the Company of notice of any action, claim, investigation,proceeding (commenced or threatened), certificate, offer, proposal, material correspondence orother material written communication relating to the transactions contemplated by this Agreement,any other Transaction Document, the Revenue Rights or any Material Contract relating to themanufacture or distribution of the Included Products or the Additional Included Products in theTerritory or to the sale or license of the Intellectual Property, then the Company shall informCHRP of the receipt of such notice and the substance of such action, claim, investigation,proceeding, certificate, offer, proposal, correspondence or other written communication and, if inwriting shall furnish CHRP with a copy of such notice and any related materials with respect tosuch action, claim, investigation, proceeding, certificate, offer, proposal, correspondence orother written communication.     (b) The Company shall keep and maintain, or cause to be kept and maintained, at all timesaccurate and complete books and records. The Company shall keep and maintain, or cause to be keptand maintained, at all times full and accurate books of account and records adequate to correctlyreflect all payments paid and/or payable with respect to Revenue Rights and the Revenue Interestand all deposits made into the applicable Collection Accounts.     (c) CHRP and any of CHRP’s representatives shall have the right (at its cost), from time totime (but no more frequently than four (4) times per year), to visit the Company and itsSubsidiaries’ offices and properties where the Company and its Subsidiaries keep and maintain itsbooks and records relating or pertaining to the Revenue Rights, the Revenue Interest and the otherCollateral for purposes of conducting an audit of such books and records, and to inspect, copy andaudit such books and records, during normal business hours, and, upon five (5) Business Days’written notice given by CHRP to the Company, the Company will provide CHRP and any of CHRP’srepresentatives reasonable access to such books and records, and shall permit CHRP and any ofCHRP’s representatives to discuss the business, operations, properties and financial and othercondition of the Company or any of its Affiliates including, but not
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limited to, matters relatingor pertaining to the Revenue Rights, the Revenue Interest and the other Collateral with officers ofsuch parties, and with their independent certified public accountants (to the extent suchindependent certified accountants agree to discuss such matters with CHRP).     (d) In the event any audit of the books and records of the Company and its Subsidiariesrelating to the Revenue Rights, Revenue Interest, and the other Collateral by CHRP and/or any ofCHRP’s representatives reveals that the amounts paid to CHRP hereunder for the period of such audithave been understated by more than five percent (5%) of the amounts determined to be due for theperiod subject to such audit, then the Audit Costs in respect of such audit shall be borne by theCompany; and in all other cases, such Audit Costs shall be borne by CHRP.     (e) The Company shall, promptly after the end of each Fiscal Quarter (but in no event laterthan forty five (45) days following the end of such Fiscal Quarter), produce and deliver to CHRP aQuarterly Report for such quarter, together with a certificate of an executive officer of theCompany, certifying that to the knowledge of such officer (i) such Quarterly Report is a true andcomplete copy (in all material respects) and (ii) any statements and any data and informationtherein prepared by the Company are true, correct and accurate in all material respects.     **Section 5.03****Material Contracts**.     The Company shall comply with all material terms and conditions of and fulfill all of itsobligations under all the Material Contracts. Upon the occurrence of a material breach of any suchMaterial Contract by any other party thereto, which is not cured as provided therein, the Companyshall use commercially reasonable efforts to seek to enforce all of its rights and remediesthereunder. The Company shall not amend any Material Contract (other than consents or approvalsgiven in the ordinary course of business) or issue any consents or other approvals under any suchMaterial Contract without the prior written consent of CHRP, which consent shall not beunreasonably withheld, delayed or conditioned.     **Section 5.04****Confidentiality; Public Announcement**.     (a) All information furnished by CHRP to the Company or by the Company to CHRP, including theConfidential Information, in connection with this Agreement and any other Transaction Document andthe transactions contemplated hereby and thereby, as well as the terms, conditions and provisionsof this Agreement and any other Transaction Document, shall be kept confidential by the Company andCHRP, and shall be used by the Company and CHRP only in connection with this Agreement and anyother Transaction Document and the transactions contemplated hereby and thereby. Notwithstandingthe foregoing, the Company and CHRP may disclose such information to their partners, directors,employees, managers, officers, investors, potential investors, bankers, advisors, trustees andrepresentatives, provided that such Persons shall be informed of the confidential nature ofsuch information and shall be obligated in writing to keep such information confidential pursuantto the terms of this Section 5.04(a). The Company will consult with CHRP, and CHRP willconsult the Company, on the form, content and timing of any such disclosures of ConfidentialInformation related to the Transaction Documents including, without limitation, any disclosuresmade pursuant to applicable securities laws or made to investment or other analysts.
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     (b) Except as required by law or the rules and regulations of any securities exchange ortrading system or the FDA or any Governmental Authority with similar regulatory authority, orexcept with the prior written consent of the other party (which consent shall not be unreasonablywithheld, conditioned or delayed), no party shall issue any press release or make any other publicdisclosure with respect to the transactions contemplated by this Agreement orany other Transaction Document; provided, however, that wherever so permittedby relevant law or rule, the Company shall make available to CHRP prior to public release (andconsider CHRP’s reasonable revisions thereto) any press releases required by law or the rules andregulations of any securities exchange or trading system or the FDA or any Governmental Authoritywith similar regulatory authority with respect to the transactions contemplated by this Agreementor any other Transaction Document; and providedfurther, that the Company and CHRPmay jointly prepare a press release for dissemination promptly following the Closing Date.Notwithstanding anything to the contrary in this Section 5.04(b), the Company shall seekconfidential treatment under applicable Securities and Exchange Commission rules, to avoid publicdisclosure of competitively sensitive provisions of the Revenue Interest (*i.e.*, the ApplicablePercentage, the multiple step down and the Put Price formula using internal rate of return andmultiples, *etc*.), and to allow CHRP to review and provide input on all redacted drafts, descriptivesummaries and transmittal letters prepared in connection with the Company’s obligations arisingunder this sentence prior to submission or filing with the Securities and Exchange Commission orotherwise.     **Section 5.05****Security Agreement**.     The Company shall, at all times until the Obligations are paid and performed in full, grant infavor of CHRP a valid, continuing, first perfected security interest in the Revenue Rights and theRevenue Interest relating to it and the other Collateral described in the Revenue Interest SecurityAgreement.     **Section 5.06****Further Assurance**.     (a) Subject to the terms and conditions of this Agreement, each of CHRP and the Company willuse their commercially reasonable efforts to take, or cause to be taken, all actions and to do, orcause to be done, all things necessary under applicable laws and regulations to consummate thetransactions contemplated by this Agreement and any other Transaction Document. CHRP and theCompany agree to execute and deliver such other documents, certificates, agreements and otherwritings (including any financing statement filings requested by CHRP) and to take such otheractions as may be reasonably necessary in order to consummate or implement expeditiously thetransactions contemplated by this Agreement and any other Transaction Document and to vest in CHRPgood, valid and marketable rights and interests in and to the Revenue Interest free and clear ofall Liens, except for the Permitted Liens and those Liens created in favor of CHRP pursuant toRevenue Interest Security Agreement, the Note Security Agreement, the Subsidiary Note SecurityAgreement and any other Transaction Document.     (b) CHRP and the Company shall execute and deliver such additional documents, certificates andinstruments, and to perform such additional acts, as may be reasonably requested and necessary orappropriate to carry out and effectuate all of the provisions of this Agreement and any otherTransaction Document and to consummate all of the transactions contemplated by this Agreement andany other Transaction Document.
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     (c) CHRP and the Company shall cooperate and provide assistance as reasonably requested by theother respective party in connection with any litigation, arbitration or other proceeding (whetherthreatened, existing, initiated, or contemplated prior to, on or after the date hereof) to whichany party hereto or any of its officers, directors, shareholders, agents oremployees is or may become a party or is or may become otherwise directly or indirectlyaffected or as to which any such Persons have a direct or indirect interests, in each case relatingto this Agreement, any other Transaction Document, the Revenue Interest or any other Collateral, orthe transactions described herein or therein.     **Section 5.07****Put Option; Step-Down Option**.     (a) In the event that a Put Option Event shall occur during the Term, CHRP shall have theright, but not the obligation (the “Put Option”), to require the Company to repurchase fromCHRP the Revenue Interest at the Put Price in cash. In the event CHRP elects to exercise its PutOption, CHRP shall deliver written notice to the Company specifying the closing date (the “PutOption Closing Date”), which date shall (i) in the case of a Change of Control, be the date ofconsummation of such Change of Control, and (ii) otherwise, not be earlier than thirty (30) daysafter the breach or default giving rise to the Put Option Event or later than one hundred eighty(180) days after the Put Option Event. On the Put Option Closing Date, the Company shallrepurchase from CHRP the Revenue Interest at the Put Price in cash, the payment of which shall bemade by wire transfer of immediately available funds to the account designated by CHRP.Notwithstanding anything to the contrary contained herein, immediately upon the occurrence of aBankruptcy Event, CHRP shall be deemed to have automatically and simultaneously elected to have theCompany repurchase from CHRP the Revenue Interest for the Put Price in cash and the Put Price shallbe immediately due and payable without any further action or notice by any party.     (b) In connection with the consummation of a repurchase of the Revenue Interest pursuant tothe Put Option, CHRP agrees that it will (i) promptly execute and deliver to the Company such UCCtermination statements and other documents as may be necessary to release CHRP’s Lien on theCollateral and otherwise give effect to such repurchase and (ii) take such other actions or providesuch other assistance as may be necessary to give effect to such repurchase.     (c) The Company shall have the right, but not the obligation (the “Step-Down Option”),to prepay amounts to CHRP in respect of Sections 2.02 and 5.08 at the Step-DownPrice in cash; provided, however, that, the Company shall remain obligated to payCHRP *** percent (***%) of all Net Product Sales from and after the Step-Down ClosingDate through the end of the Term, which Net Product Sales shall be treated in accordance withclause (b) of the definition of Applicable Percentage. In the event the Company elects to exerciseits Step-Down Option, the Company shall deliver written notice to the CHRP specifying the closingdate (the “Step-Down Option Closing Date”), which date shall be no more than ten (10)Business Days after the date on which the Company delivers its written notice. On the Step-DownOption Closing Date, the Company shall prepay such amounts to CHRP at the Step-Down Price in cash, *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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the payment of which shall be made by wire transfer of immediately available funds to the accountdesignated by CHRP.     **Section 5.08****Remittance to and from the Collection Accounts**.     (a) Within thirty (30) days of the Closing Date, the parties hereto shall enter into (i) theJPMorgan Deposit Agreement in form and substance reasonably satisfactory to the parties hereto andthe Deposit Bank, which agreement will provide for, among other things, the establishment andmaintenance of a Joint Concentration Account and a CHRP Concentration Account, and theestablishment of “control” within the meaning of Article 9 of the UCC, with respect to the JointConcentration Account, all in accordance with the terms herein and therein, and (ii) the ComericaDeposit Agreement in form and substance reasonably satisfactory to the parties hereto and theCollection Bank, which agreement will provide for, among other things, the maintenance of theCollection Accounts, the daily sweeping of all funds from the deposit account described in thedefinition of “Collection Accounts” to the Joint Concentration Account and the establishment of“control” within the meaning of Article 9 of the UCC, with respect to the Collection Accounts. AnyCHRP Concentration Account shall be held solely for the benefit of CHRP, but shall be subject tothe terms and conditions of this Agreement, the Revenue Interest Security Agreement, the NoteSecurity Agreement, the Subsidiary Note Security Agreement and the other Transaction Documents.Funds deposited into the lockbox and credit accounts described in the definition of “CollectionAccounts” shall be swept by the Collection Bank on a daily basis into the deposit account describedin the definition of “Collection Accounts”; and subsequent thereto such funds shall be swept by theCollection Bank on a daily basis into the Joint Concentration Account; and subsequent thereto, theDaily Amount shall be swept by the Deposit Bank on a daily basis into the CHRP ConcentrationAccount. CHRP shall have immediate and full access to any funds held in the CHRP ConcentrationAccount and such funds shall not be subject to any conditions or restrictions whatsoever. Afterthe Daily Amount is swept into the CHRP Concentration Account, the amounts remaining in the JointConcentration Account shall then be swept by the Deposit Bank into the Company ConcentrationAccount. The Company shall have immediate and full access to any funds held in the CompanyConcentration Account and such funds shall not be subject to any conditions or restrictionswhatsoever other than those of the Deposit Bank and as provided in the Note Security Agreement andrelated documents; provided, however, that nothing herein shall (i) affect orreduce the Company’s obligations to pay in full all amounts due to CHRP under this Agreement, or(ii) in any manner limit the recourse of CHRP to the Collateral to satisfy the Company’sObligations.     (b) The Company shall pay for all fees, expenses and charges of the Deposit Bank and theCollection Bank other than fees relating to the CHRP Concentration Account.     (c) The Company shall cause all its customers (including any licensees of the IntellectualProperty) to remit all payments in respect of sales of Included Products and the AdditionalIncluded Products (or such licenses) directly to the Collection Accounts. Without limiting theforegoing, commencing on the Closing Date and thereafter, any and all payments in respect of salesof the Included Products and the Additional Included Products received by the Company or itsSubsidiaries shall be deposited into the Joint Concentration Account within three (3) Business Daysof the Company’s or its Subsidiaries’ receipt thereof.
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     (d) The Company shall not have any right to terminate the Collection Bank or Deposit Bankwithout CHRP’s prior written consent. Any such consent, which CHRP may grant or withhold in itssole and absolute discretion, shall be subject to the satisfaction of each of the followingconditions to the satisfaction of CHRP:          (i) the successor Collection Bank or Deposit Bank shall be acceptable to CHRP;          (ii) CHRP, the Company and the successor Collection Bank or Deposit Bank shall have enteredinto deposit agreements substantially in the forms of the JPMorgan Deposit Agreement and ComericaDeposit Agreement, each initially entered into, as applicable;          (iii) all funds and items in the accounts subject to the Comerica Deposit Agreement orJPMorgan Deposit Agreement to be terminated shall be transferred to the new accounts held at thesuccessor Collection Bank or Deposit Bank, as applicable, prior to the termination of the thenexisting Collection Bank or Deposit Bank; and          (iv) CHRP shall have received evidence that all of the applicable parties making payments inrespect of sales of the Included Products and Additional Included Products have been instructed toremit all future payments in respect of sales of the Included Products and Additional IncludedProducts to the new accounts held at the successor Collection Bank or Deposit Bank.     (e) True-Up.          (i) Following the end of each Fiscal Quarter, as soon as the Company shall have determined theNet Product Sales for such Fiscal Quarter and for each other Fiscal Quarter in the Fiscal Year inwhich the then most recently ended Fiscal Quarter occurred (the “Year-to-Date Net ProductSales”) and in any event no later than forty-five (45) days after the end of such FiscalQuarter (unless such Fiscal Quarter is the last Fiscal Quarter of a Fiscal Year in which case nolater than ninety (90) days after the end of such Fiscal Quarter), the Company shall present CHRP acertificate, in reasonable detail with supporting calculations and information, detailing theYear-to-Date Net Product Sales (the “True-Up Statement”); provided that if the Company isrequired to file Forms 10-Q and 10-K with the SEC, the time periods for delivery of the True-UpStatement shall be 15 days after the due dates for the Company’s filing of such forms with the SEC.          (ii) If CHRP has received on or prior to the last day of the most recently ended FiscalQuarter payments from the Company under Section 2.02 (other than payments under Section2.02(a)(ii), provided, however, the Company’s payments under Section 2.02(a)(ii) shallbe considered for purposes of determining the Applicable Percentage) or this Section 5.08in respect of the Fiscal Year for which Year-to-Date Net Product Sales is calculated under clause(i) above which are in excess of the Applicable Percentage of Year-to-Date Net Product Sales, CHRPshall pay such excess to the Company within twenty (20) days of receipt by CHRP of the True-UpStatement. For the avoidance of doubt, the provisions of this Section 5.08(e)(ii) shallalso apply, in any event, if and to the extent the payment received by CHRP pursuant to Section2.02(a)(ii) results in aggregate payments received and retained (i.e., not refunded pursuant tothe true-up in Section 5.08(e) by CHRP) by CHRP under Sections 2.02,5.07(c) and 5.08 from October 1, 2007 through the end of the Fiscal Quarter inwhich payment is received by CHRP
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pursuant to Section 2.02(a)(ii), to exceed      ***      Percent (***%) of theaggregate amount paid by CHRP under Section 2.03.          (iii) If the Applicable Percentage of Year-to-Date Net Product Sales is in excess of theamounts CHRP has received on or prior to the last day of the most recently ended Fiscal Quarter inrespect of the Fiscal Year for which Year-to-Date Net Product Sales is calculated under clause (i)above under Section 2.02 (other than payments under Section 2.02(a)(ii), provided,however, the Company’s payments under Section 2.02(a)(ii) shall be considered for purposesof determining the Applicable Percentage) or this Section 5.08, the Company shall pay suchexcess to CHRP within twenty (20) days of the receipt by CHRP of the True-Up Statement.     **Section 5.09****License Agreements**.     The Company shall use its commercially reasonable efforts to duly perform and observe all ofits covenants and obligations under each License Agreement in all material respects. Upon theoccurrence of a material breach of any of the License Agreements by any other party thereto, whichis not cured as provided therein, the Company thereto shall use its commercially reasonable effortsto seek to enforce all of its and its Subsidiaries’ rights and remedies thereunder, if its board ofdirectors determines it is in the best interests of the Company and its stockholders to enforcesuch rights and remedies.     **Section 5.10****Intellectual Property**.     (a) Except with respect to the Patents set forth on Schedule 5.10, the Company shall,at its sole expense, either directly or by causing any Licensee to do so, take any and allcommercially reasonable actions (including taking legal action to specifically enforce theapplicable terms of any License Agreement) and prepare, execute, deliver and file any and allagreements, documents or instruments which are necessary to (A) diligently maintain the applicableIntellectual Property and the Patents and (B) diligently defend or assert such IntellectualProperty and such Patents against infringement or interference in the Territory by any otherPersons, and against any claims of invalidity or unenforceability, in any jurisdiction in theTerritory (including, without limitation, by bringing any legal action for infringement ordefending any counterclaim of invalidity or action of a Third Party for declaratory judgment ofnon-infringement or non-interference). Except with respect to the patents set forth onSchedule 5.10, the Company shall not and shall use its commercially reasonable efforts tocause any Licensee not to, disclaim or abandon, or fail to take any action necessary or desirableto prevent the disclaimer or abandonment of, the applicable Patents in the Territory or otherIntellectual Property; provided, however, this Section shall not apply to abandonment of anyPatents and trademarks made in the ordinary course of business to the extent consented to by CHRP(not to be unreasonably withheld, conditioned or delayed.)     (b) In the event that the Company becomes aware that the Use of any Included Product orAdditional Included Product in the Territory infringes or violates any Third Party *** Portions of this page have been omitted pursuant to arequest for Confidential Treatment filed separately with the Commission.
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intellectual property, the Company shall promptly use commercially reasonable efforts to attemptto secure the right to use such intellectual property on behalf of itself and the affectedLicensee and shall pay all costs and amounts associated with obtaining any such license, withoutany reduction in the Revenue Interest.     (c) The Company shall directly, or through a Licensee, take any and all commerciallyreasonable actions and prepare, execute, deliver and file any and all agreements, documents orinstruments that are necessary or desirable to secure and maintain all Regulatory Approvals in theTerritory. The Company shall not withdraw or abandon, or fail to take any action necessary toprevent the withdrawal or abandonment of, any Regulatory Approval in the Territory once obtained.     **Section 5.11****Negative Covenants**.     The Company shall not, nor shall it permit any of its Subsidiaries to, without the priorwritten consent of CHRP:     (a) forgive, release or reduce any amount, or delay or postpone (other than on a commerciallyreasonable basis) any amount, owed to the Company or its Subsidiaries and relating to the RevenueInterest;     (b) waive, amend, cancel or terminate, exercise or fail to exercise, any of its materialrights constituting or relating to the Revenue Rights except in respect of the abandonment onnon-material non-United States Patents which has been determined by the Company’s board ofdirectors to be in the best interests of the Company and its stockholders;     (c) amend, modify, restate, cancel, supplement, terminate or waive any provision of anyLicense Agreement, or grant any consent thereunder, or agree to do any of the foregoing, including,without limitation, entering into any agreement with any Licensee under the provisions of suchLicense Agreement; or     (d) create, incur, assume or suffer to exist any Lien, upon or with respect to the RevenueInterest, the Revenue Rights or the other Collateral, or agree to do or suffer to exist any of theforegoing, except for any Permitted Liens and any Lien or agreements in favor of CHRP granted underor pursuant to this Agreement and the other Transaction Documents.     **Section 5.12****Future Agreements**.     The Company shall not enter into, nor shall it permit any of its Subsidiaries to enter into,any agreement that would or could reasonably be expected to result in a Material Adverse Effectwithout CHRP’s prior written consent, which consent shall not be unreasonably withheld, delayed orconditioned.     **Section 5.13****Insurance**.     The Company shall (i) maintain insurance policies with insurance companies rated not less than“A-” by A.M. Best Company, Inc. with coverages and in amounts customary for companies of comparablesize and condition similarly situated in the same industry as the Company and its Subsidiaries,including product liability insurance, directors and officers insurance and general liability,subject only to such exclusions and deductible items as are usual
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and customary in insurance policies of such type, and (ii) maintain CHRP as an additional insuredparty with respect to its general liability and product liability insurance policies.     **Section 5.14****Notice**.     The Company shall provide CHRP with written notice as promptly as practicable (and in anyevent within five (5) Business Days) after becoming aware of any of the following:     (a) the occurrence of a Bankruptcy Event;     (b) any material breach or default by the Company or any of its Subsidiaries of any covenant,agreement or other provision of this Agreement or any other Transaction Document;     (c) any representation or warranty made or deemed made by the Company or any of itsSubsidiaries in any of the Transaction Documents or in any certificate delivered to CHRP pursuanthereto shall prove to be untrue, inaccurate or incomplete in any material respect on the date as ofwhich made or deemed made; or     (d) the occurrence of a Change of Control.     **Section 5.15****Use of Proceeds**.     The Company and its Subsidiaries shall use all proceeds received from CHRP pursuant toSection 2.03 for the purpose of generating and increasing Net Product Sales and for workingcapital and general corporate purposes, including, but not limited to, the repayment of outstandingdebt to Comerica, build out of commercial infrastructure, promotional, marketing and sales effortsand the hiring of sales representatives and other employees. The Company and its Subsidiariesshall not use any such proceeds for any other purposes.
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**ARTICLE VI****THE CLOSING; CONDITIONS TO CLOSING**     **Section 6.01****Closing**.     Subject to the closing conditions set forth in Sections 6.02 and 6.03, theclosing of the assignment of the Revenue Interest and the Second Warrant (the “Closing”)shall take place at the offices of McDermott Will & Emery LLP, 227 W. Monroe St., Chicago, Illinois60606, on the Closing Date.     **Section 6.02****Conditions Applicable to CHRP**.     The obligations of CHRP to effect the Closing shall be subject to the satisfaction of thefollowing conditions, any of which may be waived by CHRP in its sole discretion:     (a) Accuracy of Representations and Warranties. The representations and warranties ofthe Company set forth in the Transaction Documents shall be true, correct and complete in allmaterial respects as of the Closing Date.     (b) No Adverse Circumstances. Except as disclosed to CHRP in the Disclosure Scheduleor the Company’s Form 10-Q for the third quarter of 2007 as filed with the SEC, there shall nothave occurred or be continuing any event or circumstance (including any development with respect tothe efficacy of the Included Products or the Intellectual Property or the use or expected futureuse of the same as opposed to competing products) that could reasonably be expected to have aMaterial Adverse Effect.     (c) Litigation. No action, suit, litigation, proceeding or investigation shall havebeen instituted, be pending or threatened (i) challenging or seeking to make illegal, to delay orotherwise directly or indirectly to restrain or prohibit the consummation of the transactionscontemplated by this Agreement, or seeking to obtain damages in connection with the transactionscontemplated by this Agreement, or (ii) seeking to restrain or prohibit CHRP’s acquisition of theRevenue Interest or the Second Warrant.     (d) Consents. All notices to, consents, approvals, authorizations and waivers fromThird Parties and Government Authorities that are required for the consummation of the transactionscontemplated by this Agreement or any of the Transaction Documents shall have been obtained orprovided for and shall remain in effect.     (e) Comerica Deposit Agreement. The Comerica Deposit Agreement (together with anynecessary account control agreements) shall have been executed and delivered by the Company and theCollection Bank, and CHRP shall have received the same.     (f) JPMorgan Deposit Agreement. The JPMorgan Deposit Agreement (together with anynecessary account control agreements) shall have been executed and delivered by the Company and theDeposit Bank, and CHRP shall have received the same.     (g) Note and Warrant Purchase Agreement. The Note and Warrant Purchase Agreementshall have been executed and delivered by the Company, and CHRP shall have received the same.
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     (h) Second Warrant. The Second Warrant shall have been executed and delivered by theCompany, and CHRP shall have received the same.     (i) Investor Rights Agreement. The Investor Rights Agreement shall have been executedand delivered by the Company, and CHRP shall have received the same.     (j) Officer’s Certificate. CHRP shall have received a certificate of an executiveofficer of the Company pursuant to which such officer certifies that the conditions set forth inSections6.02(a), (b), (c), and (o) have been satisfied inall respects.     (k) Assignment of Revenue Interest. The Assignment of Revenue Interest shall havebeen executed and delivered by the Company to CHRP, and CHRP shall have received the same.     (l) Security Agreements. The Revenue Interest Security Agreement, the Note SecurityAgreement and the Subsidiary Note Security Agreement shall have been duly executed and delivered byall the parties thereto, together with proper financing statements (including Form UCC-1s) forfiling under the UCC and/or any other applicable law, rule, statute or regulation relating to theperfection of a security interest in filing offices in the jurisdictions listed on Schedule6.02(l), and such agreements shall be in full force and effect.     (m) Legal Opinions.          (i) CHRP shall have received an opinion of Heller Ehrman LLP, transaction counsel to theCompany, in form and substance satisfactory to CHRP and its counsel, to the effect set forth inExhibit G.          (ii) CHRP shall have received an opinion of Heller Ehrman LLP, intellectual property counselto the Company, in form and substance satisfactory to CHRP and its counsel, to the effect set forthin Exhibit H.     (n) Corporate Documents of the Company and its Subsidiaries. CHRP shall have receivedon the Closing Date, certificates, dated as of the Closing Date, of an executive officer of theCompany and its Subsidiaries (the statements made in which shall be true and correct on and as ofthe Closing Date): (i) attaching copies, certified by such officer as true and complete, of eachthe Company’s and its Subsidiaries’ certificate of incorporation or other organizational documents(together with any and all amendments thereto) certified by the appropriate Governmental Authorityas being true, correct and complete copies; (ii) attaching copies, certified by such officer astrue and complete, of resolutions of the board of directors of each of the Company and itsSubsidiaries authorizing and approving the execution, delivery and performance by it of theTransaction Documents and the transactions contemplated herein and therein; (iii) setting forth theincumbency of the officer or officers of the Company and its Subsidiaries who have executed anddelivered the Transaction Documents including therein a signature specimen of each such officer orofficers; and (iv) attaching copies, certified by such officer as true and complete, of acertificate of the appropriate Governmental Authority of each of the Company and its Subsidiaries’jurisdiction of incorporation, stating that it is in good standing under the laws of itsincorporation.     (o) Covenants. Each of the Company and its Subsidiaries shall have complied in allmaterial respects with its covenants set forth in the Transaction Documents.
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     (p) Due Diligence. CHRP’s due diligence review of the Company and its Subsidiariesshall have been completed to CHRP’s reasonable satisfaction.     **Section 6.03****Conditions Applicable to the Company**.     The obligation of the Company to effect the Closing shall be subject to the satisfaction ofeach of the following conditions, any of which may be waived by the Company in their solediscretion:     (a) Accuracy of Representations and Warranties. The representations and warranties ofCHRP set forth in this Agreement shall be true, correct and complete in all material respects as ofthe Closing Date.     (b) Litigation. No action, suit, litigation, proceeding or investigation shall havebeen instituted, be pending or threatened (i) challenging or seeking to make illegal, to delay orotherwise directly or indirectly to restrain or prohibit the consummation of the transactionscontemplated by this Agreement, or seeking to obtain damages in connection with the transactionscontemplated by this Agreement, or (ii) seeking to restrain or prohibit CHRP’s acquisition of theRevenue Interest or the Second Warrant.     (c) Closing Certificate. The Company shall have received at the Closing a certificateof an authorized representative of CHRP certifying that the conditions set forth in Sections6.03(a) and (b) have been satisfied in all material respects as of the Closing Date.     (d) Funding. CHRP shall have funded under its obligations arising under Section2.03(a)(i) within fifteen (15) Business Days of the date hereof.**ARTICLE VII****TERMINATION**     **Section 7.01****Termination Date**.     Except as otherwise provided in this Section 7.01 and in Sections 7.02 and8.01, this Agreement shall terminate upon expiration of the Term. If any payments arerequired to be made by one of the parties hereunder after that date, this Agreement shall remain infull force and effect until any and all such payments have been made in full, and (except asprovided in Section 7.02) solely for that purpose. In addition, this Agreement shallsooner terminate if CHRP shall have exercised the Put Option, pursuant to Section 5.07,with the termination date in that event being the date on which the Company completes therepurchase of the Revenue Interest with payment in full to CHRP.     **Section 7.02****Effect of Termination**.     In the event of the termination of this Agreement pursuant to Section 7.01, thisAgreement shall forthwith become void and have no effect without any liability on the part of anyparty hereto or its Affiliates, directors, officers, stockholders, partners, managers or membersother than the provisions of this Section 7.02 and Sections 5.04, 5.05,8.01, 8.02, 8.04 and 8.05 hereof, which shall survive anytermination as set forth in Section 8.01. Nothing contained in this Section 7.02shall relieve any party from liability for any breach of this Agreement.
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**ARTICLE VIII****MISCELLANEOUS**     **Section 8.01****Survival**.     (a) All representations and warranties made herein and in any other Transaction Document, anycertificates or in any other writing delivered pursuant hereto or in connection herewith shallsurvive the execution and delivery of this Agreement and the Closing and shall continue to surviveto the extent permitted by law until the termination of this Agreement in accordance with ArticleVII. Notwithstanding anything in this Agreement or implied by law to the contrary, all theagreements contained in Sections 5.04, 5.05, 8.01, 8.02,8.04 and 8.05 shall survive indefinitely following the execution and delivery ofthis Agreement and the Closing and the termination of this Agreement.     (b) Any investigation or other examination that may have been made or may be made at any timeby or on behalf of the party to whom representations and warranties are made shall not limit,diminish or in any way affect the representations and warranties in the Transaction Documents, andthe parties may rely on the representations and warranties in the Transaction Documentsirrespective of any information obtained by them by any investigation, examination or otherwise.     **Section 8.02****Future Equity Offerings**.     In the event that the Company desires to conduct a transaction or series of transactions afterthe Closing Date, in which the Company issues its equity securities and/or rights to acquire itsequity securities, then the Company shall take commercially reasonable efforts to discuss theopportunity for CHRP to participate in such transaction or series of transactions, without anyfurther obligation.     **Section 8.03****Notices**.     All notices, consents, waivers and communications hereunder given by any party to the othershall be in writing (including facsimile transmission and electronic mail) and deliveredpersonally, facsimile, by electronic mail, by a recognized overnight courier, or by dispatching thesame by certified or registered mail, return receipt requested, with postage prepaid, in each caseaddressed:     If to CHRP to:Cowen Healthcare Royalty Partners, L.P.