Exhibit 10.17


 


CONFIDENTIAL
PROVISIONS REDACTED


 


ASSET
PURCHASE AGREEMENT


 


BY AND BETWEEN


 


PDL
BIOPHARMA, INC.,


a Delaware
corporation


 


and


 


EKR
THERAPEUTICS, INC.,


a Delaware
corporation


 


Dated as of February 4,
2008


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE 1 DEFINITIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  “Accounts Payable”

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.2

  	
  “Accounts Receivable”

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.3

  	
  “Affiliate”

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.4

  	
  “Agreement”

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.5

  	
  “Assets”

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.6

  	
  “Assumed Contracts”

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.7

  	
  “Assumed Liabilities”

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.8

  	
  “Books and Records”

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.9

  	
  “Business”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.10

  	
  “Business Employee”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.11

  	
  “Buyer”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.12

  	
  “Buyer Indemnitee(s)”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.13

  	
  “Cardene”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.14

  	
  “Cardene Drug Product”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.15

  	
  “Cardene IV”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.16

  	
  “Cardene Packaged Product”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.17

  	
  “Cardene [****]* Product”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.18

  	
  “Cardene Product Inventory”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.19

  	
  “Cardene SR”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.20

  	
  “Claim”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.21

  	
  “Clinical Data”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.22

  	
  “Clinical Trial”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.23

  	
  “Clinical Trial Materials”

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.24

  	
  “Clinical Trial Study Reports”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.25

  	
  “Closing”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.26

  	
  “Closing Date”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.27

  	
  “Confidential Information”

  	
  3

  	
   

  
							



 






* Certain information on this page has
been omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


CONFIDENTIAL
TREATMENT REQUESTED


 


i

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.28

  	
  “Confidentiality Agreement”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.29

  	
  “Copyrights”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.30

  	
  “[****]*”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.31

  	
  “Customer Orders”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.32

  	
  “CV Products”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.33

  	
  “Drug Products”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.34

  	
  “Effective Date”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.35

  	
  “Employee Benefit Plans”

  	
  3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.36

  	
  “Escrow Agent”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.37

  	
  “Escrow Agreement”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.38

  	
  “Escrow Amount”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.39

  	
  “Excluded Assets”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.40

  	
  “Excluded Liabilities”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.41

  	
  “FDA”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.42

  	
  “FD&C Act”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.43

  	
  “GAAP”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.44

  	
  “Governmental Entity”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.45

  	
  “HSR”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.46

  	
  “HSR Filings”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.47

  	
  “IND”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.48

  	
  “Initial FDA Approval”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.49

  	
  “Initial Purchase Price”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.50

  	
  “Intellectual Property

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.51

  	
  “Knowledge”

  	
  4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.52

  	
  “Liabilities”

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.53

  	
  “Licensed IP Rights”

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.54

  	
  “Litigation Cooperation Agreement”

  	
  5

  	
   

  
							



 






* Certain information on this page has
been omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


ii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.55

  	
  “Marketed Products”

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.56

  	
  “Marketing and Promotional Documents”

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.57

  	
  “Material Adverse Change” and “Material Adverse
  Effect”

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.58

  	
  “Milestone and Revenue Payments”

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.59

  	
  “Milestone Payments”

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.60

  	
  “Net Sales”

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.61

  	
  “Net Sales Adjustments”

  	
  6

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.62

  	
  “NDA”

  	
  6

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.63

  	
  “Non Product-Specific Manufacturing Information”

  	
  6

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.64

  	
  “Packaging Inventory”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.65

  	
  “Packaged Products”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.66

  	
  “Patents”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.67

  	
  “[****]*”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.68

  	
  “Product Inventory”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.69

  	
  “Product-Specific Manufacturing Information”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.70

  	
  “Product Specifications”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.71

  	
  “Purchase Price”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.72

  	
  “Raw Materials and WIP”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.73

  	
  “Registrations”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.74

  	
  “Research and Development Materials”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.75

  	
  “Retavase”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.76

  	
  “Retavase Drug Product”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.77

  	
  “Retavase Packaged Product”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.78

  	
  “Retavase Product Inventory”

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.79

  	
  “Revenue Payments”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.80

  	
  “SEC”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.81

  	
  “Seller”

  	
  8

  	
   

  
							



 






* Certain information on this page has
been omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


iii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.82

  	
  “Seller Indemnitees”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.83

  	
  “[****]*”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.84

  	
  “Sun Litigation”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.85

  	
  “Survival Date”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.86

  	
  “Tangible Assets”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.87

  	
  “Tax” and “Taxes”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.88

  	
  “Territory”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.89

  	
  “Third Party Consents”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.90

  	
  “Trade Secrets”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.91

  	
  “Trademarks”

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.92

  	
  “Trademark Registrations”

  	
  9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.93

  	
  “Transition Services Agreement”

  	
  9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.94

  	
  “Ularitide”

  	
  9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.95

  	
  “Worldwide Safety Reports”

  	
  9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2 TRANSFER OF ASSETS;
  LICENSE AND SUBLICENSE

  	
  9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Purchase and Sale of Assets

  	
  9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Patents

  	
  9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  Licensed IP Rights

  	
  9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
  Trademark Registrations

  	
  10

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (d)

  	
  Copyrights

  	
  10

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (e)

  	
  Registrations

  	
  10

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (f)

  	
  Product-Specific Manufacturing Information

  	
  10

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (g)

  	
  Non Product-Specific Manufacturing Information

  	
  10

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (h)

  	
  Research and Development Materials

  	
  11

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i)

  	
  Marketing and Promotional Documents

  	
  11

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (j)

  	
  Worldwide Safety Reports

  	
  11

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (k)

  	
  Clinical Data

  	
  11

  	
   

  
								



 






* Certain information on this page has
been omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


iv

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (l)

  	
  Tangible Assets

  	
  11

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (m)

  	
  Domain Names

  	
  11

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (n)

  	
  Product Inventory

  	
  11

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (o)

  	
  Raw Materials and WIP

  	
  12

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (p)

  	
  Assumed Contracts

  	
  12

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (q)

  	
  Clinical Trial Materials

  	
  12

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (r)

  	
  Clinical Trial Study Reports

  	
  12

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (s)

  	
  Sun Litigation

  	
  12

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (t)

  	
  Books and Records

  	
  12

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (u)

  	
  Customer Orders

  	
  12

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (v)

  	
  Packaging Inventory

  	
  12

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (w)

  	
  Other Intellectual Property

  	
  13

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Excluded Assets

  	
  13

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3

  	
  Assumed Liabilities

  	
  13

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4

  	
  Excluded Liabilities

  	
  14

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.5

  	
  Risk of Loss

  	
  15

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.6

  	
  Taxes

  	
  15

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.7

  	
  Third-Party Consents

  	
  15

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3 CONSIDERATION

  	
  16

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Purchase Price

  	
  16

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Method of Payment

  	
  17

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  Revenue Payments; Reports

  	
  18

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4

  	
  Accounting

  	
  18

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.5

  	
  Records; Audits

  	
  18

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.6

  	
  Late Payments

  	
  19

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.7

  	
  Allocation of Purchase Price

  	
  19

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4 CLOSING

  	
  20

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Closing

  	
  20

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Actions at Closing

  	
  20

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Deliveries by Seller at Closing

  	
  20

  	
   

  
								



 


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  (b)

  	
  Deliveries by Buyer at Closing

  	
  21

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5 EMPLOYMENT MATTERS

  	
  22

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Employees

  	
  22

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6 REPRESENTATIONS AND
  WARRANTIES OF SELLER

  	
  24

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Organization and Authority

  	
  24

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  No Violation or Conflict

  	
  24

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.3

  	
  Consents and Approvals

  	
  24

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.4

  	
  Assumed Contracts

  	
  25

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.5

  	
  Title to Assets

  	
  25

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.6

  	
  Intellectual Property

  	
  25

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.7

  	
  Regulatory Status of Marketed Products

  	
  28

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.8

  	
  Product Net Sales

  	
  28

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.9

  	
  Violations of Law

  	
  28

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.10

  	
  Litigation

  	
  28

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.11

  	
  Employees

  	
  28

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.12

  	
  Taxes

  	
  29

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.13

  	
  Customers and Suppliers

  	
  29

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.14

  	
  Inventory; Raw Materials and WIP

  	
  29

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.15

  	
  Clinical Trials

  	
  30

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.16

  	
  Absence of Change

  	
  30

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.17

  	
  No Undisclosed Liabilities

  	
  31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.18

  	
  Sufficiency

  	
  31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.19

  	
  Brokers and Finders

  	
  31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.20

  	
  No Implied Warranty

  	
  31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7 REPRESENTATIONS AND
  WARRANTIES OF BUYER

  	
  31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Organization and Authority

  	
  31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.2

  	
  No Conflict or Violation

  	
  32

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.3

  	
  Consents and Approvals

  	
  32

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.4

  	
  Cash Resources

  	
  32

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.5

  	
  Litigation

  	
  32

  	
   

  
								



 


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  7.6

  	
  Brokers and Finders

  	
  32

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.7

  	
  Buyer Due Diligence

  	
  33

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8 PRE-CLOSING COVENANTS

  	
  33

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Governmental Filings

  	
  33

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Conduct of Business

  	
  33

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.3

  	
  No Solicitation

  	
  34

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.4

  	
  Access

  	
  35

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.5

  	
  [****]*

  	
  35

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.6

  	
  Payment of Certain Expenses

  	
  35

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.7

  	
  Transition Services Agreement

  	
  35

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9 CONDITIONS TO CLOSING

  	
  36

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Conditions to Obligations of Buyer

  	
  36

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.2

  	
  Conditions to Obligations of Seller

  	
  37

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10 POST-CLOSING
  COVENANTS

  	
  37

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Further Assurances

  	
  37

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2

  	
  Transfer of Registrations; Interim Responsibility

  	
  39

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.3

  	
  Communication With Agencies

  	
  40

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.4

  	
  Adverse Experience Reporting

  	
  40

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.5

  	
  Medical Inquiries

  	
  41

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.6

  	
  Non-Use of Trademarks

  	
  41

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.7

  	
  Documents

  	
  41

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.8

  	
  Governmental Inspections

  	
  42

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.9

  	
  Intellectual Property Maintenance

  	
  42

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.10

  	
  Insurance

  	
  42

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.11

  	
  Federal Supply Schedule

  	
  43

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.12

  	
  Promotion, Marketing and Labeling

  	
  43

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.13

  	
  Payments from Third Parties

  	
  43

  	
   

  
							



 






* Certain information on this page has
been omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


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  10.14

  	
  Product Returns, Chargebacks and Rebates

  	
  44

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.15

  	
  Bulk Transfer Laws

  	
  44

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.16

  	
  Non-Competition

  	
  44

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11 CONFIDENTIALITY

  	
  45

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Confidentiality

  	
  45

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.2

  	
  Publicity

  	
  46

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12 TERM AND TERMINATION

  	
  46

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Termination

  	
  46

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.2

  	
  Effect of Termination

  	
  47

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.3

  	
  Effectiveness of Termination

  	
  47

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13 INDEMNIFICATION

  	
  48

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Survivability of Representations and Warranties

  	
  48

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.2

  	
  Indemnification by Buyer

  	
  48

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.3

  	
  Indemnification by Seller

  	
  48

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.4

  	
  Claims

  	
  48

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.5

  	
  Assertion of Claims

  	
  48

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.6

  	
  Payment of Claims; Limitation on Indemnification

  	
  49

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.7

  	
  Limitation; Exclusivity

  	
  49

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14 MISCELLANEOUS

  	
  49

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  Survival of Covenants and Agreements

  	
  49

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.2

  	
  No Third Party Beneficiaries

  	
  49

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.3

  	
  Force Majeure

  	
  50

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.4

  	
  Governing Law; Jurisdiction; Dispute Resolution and
  Arbitration

  	
  50

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.5

  	
  Severability

  	
  51

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.6

  	
  Entire Agreement

  	
  51

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.7

  	
  Amendment

  	
  51

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.8

  	
  Notices

  	
  51

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.9

  	
  Assignment

  	
  52

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.10

  	
  No Agency

  	
  52

  	
   

  
							



 


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  14.11

  	
  Construction

  	
  52

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.12

  	
  Payment of Expenses

  	
  53

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.13

  	
  Counterparts

  	
  53

  	
   

  
							



 


CONFIDENTIAL
TREATMENT REQUESTED


 


ix

















 


LIST OF
EXHIBITS, ATTACHMENT AND SCHEDULES


 


EXHIBITS


 


	
  Exhibit A

  	
  General Assignment and Bill of Sale

  
	
  Exhibit B

  	
  Assignment and Assumption Agreement

  
	
  Exhibit C

  	
  Patent Assignment Agreement

  
	
  Exhibit D

  	
  Trademark Assignment Agreement

  
	
  Exhibit E

  	
  Domain Name Assignment Agreement

  
	
  Exhibit F

  	
  Transition Services Agreement

  
	
  Exhibit G

  	
  Third Party Assignment of Assumed Contracts

  
	
  Exhibit H

  	
  Escrow Agreement

  
	
  Exhibit I

  	
  Litigation Cooperation Agreement

  
	
  Exhibit J

  	
  Form of Third Party Notification
  Letter

  



 


ATTACHMENTS


 


	
  Attachment 1.70(a)

  	
  Product Specifications for bulk active
  pharmaceutical ingredients for each CV Product

  
	
  Attachment 1.70(b)

  	
  Product Specifications for Drug Products

  
	
  Attachment 2.1(a)

  	
  List of Patents

  
	
  Attachment 2.1(b)

  	
  List of Licensed IP Rights

  
	
  Attachment 2.1(c)

  	
  List of Trademark Registrations

  
	
  Attachment 2.1(e)

  	
  List of Registrations

  
	
  Attachment 2.1(l)

  	
  List of Tangible Assets

  
	
  Attachment 2.1(m)

  	
  List of Domain Names

  
	
  Attachment 2.1(p)

  	
  List of Assumed Contracts

  
	
  Attachment 4.2(a)

  	
  List of Third Party Consents

  
	
  Attachment 5.1(a)

  	
  Business Employees

  



 


DISCLOSURE SCHEDULES


 


CONFIDENTIAL
TREATMENT REQUESTED


 














 


ASSET PURCHASE AGREEMENT


 


This Asset Purchase
Agreement (this “Agreement”) is entered into as of February 4, 2008
(the “Effective Date”) between PDL BioPharma, Inc., a Delaware
corporation (“Seller”) and EKR Therapeutics, Inc., a Delaware
corporation (“Buyer”).


 


RECITALS


 


A.            Seller is engaged in the business
(the “Business”) of developing, selling, marketing and supporting its
Cardene IV®, Cardene SR®, Retavase® and
Ularitide products (the “CV Products”).


 


B.            Seller desires to sell, transfer and
assign to Buyer, and Buyer wishes to acquire, all right, title and interest in
and to the CV Products and certain assets related to the operation of the
Business, in exchange for consideration consisting of cash and the assumption
of certain Liabilities related to the Business, pursuant to the terms and
conditions set forth in this Agreement.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties to this Agreement agree
as follows:


 


ARTICLE
1


 


DEFINITIONS


 


1.1           “Accounts Payable”
shall mean all obligations of Seller or any of its Affiliates with respect to
accounts payable and notes payable, including without limitation, those created
or arising in respect of the Business.


 


1.2           “Accounts
Receivable” shall mean all of Seller’s trade accounts receivable, and all
notes receivable or evidences of indebtedness payable to Seller created or
arising in respect of the sale of the Marketed Products.


 


1.3           “Affiliate”
with respect to any party shall mean any entity that is directly or indirectly
controlling, controlled by or under common control with such party.


 


1.4           “Agreement”
shall have the meaning given in the Preamble.


 


1.5           “Assets”
shall have the meaning given in Article 2.


 


1.6           “Assumed
Contracts” shall have the meaning given in Section 2.1(p).


 


1.7           “Assumed
Liabilities” shall have the meaning given in Section 2.3.


 


1.8           “Books and
Records” shall mean all pricing lists, customer correspondence (excluding
e-mail and other electronic correspondence not readily available in hard copy)
and 


 


CONFIDENTIAL
TREATMENT REQUESTED


 


1

















 


other books and records, in any form, used solely and specifically with
respect to the CV Products by Seller or any of Seller’s Affiliates.


 


1.9           “Business”
shall have the meaning given in the Recitals.


 


1.10         “Business Employee”
shall have the meaning given in Section 5.1(a).


 


1.11         “Buyer” shall
have the meaning given in the Preamble.


 


1.12         “Buyer
Indemnitee(s)” shall have the meaning given in Section 13.3.


 


1.13         “Cardene”
shall mean Cardene IV and Cardene SR.


 


1.14         “Cardene Drug
Product” shall mean labeled or unlabelled vials containing the active
pharmaceutical ingredient nicardipine hydrochloride.


 


1.15         “Cardene IV”
shall mean each presentation of any pharmaceutical preparation (including
formulation changes and production intermediates) containing the pharmaceutical
product known as “Cardene IV” containing the active ingredient nicardipine
hydrochloride, whether registered, marketed or in development by Seller, as of
the Closing Date.


 


1.16         “Cardene Packaged
Product” shall mean Cardene in the Product Inventory purchased by Buyer
hereunder that is packaged and labeled for sale to the end user.


 


1.17         “Cardene [****]* Product”
shall mean any formulation of Cardene IV [****]*.


 


1.18         “Cardene Product
Inventory” shall mean all inventory owned by Seller or its Affiliates of
bulk active pharmaceutical ingredient nicardipine hydrochloride, Cardene
Packaged Product and Cardene Drug Product, in existence as of the Closing.


 


1.19         “Cardene SR”
shall mean each presentation of any pharmaceutical preparation (including
formulation changes and production intermediates) containing the pharmaceutical
product known as “Cardene SR” containing the active ingredient nicardipine
hydrochloride, whether registered, marketed or in development by Seller, as of
the Closing Date.


 


1.20         “Claim” shall
have the meaning given in Section 13.4.


 


1.21         “Clinical Data”
shall have the meaning given in Section 2.1(k).


 


1.22         “Clinical Trial”
shall mean a clinical trial conducted by or on behalf of Seller or its
Affiliates, or pursuant to any Assumed Contract, in each case in which the
product Ularitide is administered to a human.


 


1.23         “Clinical Trial
Materials” shall mean the product Ularitide and the placebo for this
product manufactured by or on behalf of Seller or its Affiliates for use in
preclinical studies 


 






* Certain information on this page has been omitted and filed
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to the omitted portions.


 


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TREATMENT REQUESTED


 


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or Clinical Trials, whether in bulk, formulated or finished form and
whether in existence on the Effective Date or manufactured between the
Effective Date and Closing Date.


 


1.24         “Clinical Trial
Study Reports” shall mean all reports or summaries of all data, records and
documents resulting from the Clinical Trials for the product Ularitide.


 


1.25         “Closing”
shall have the meaning given in Section 4.1.


 


1.26         “Closing Date”
shall have the meaning given in Section 4.1.


 


1.27         “Confidential
Information” shall have the meaning ascribed to it in the Confidentiality
Agreement.


 


1.28         “Confidentiality
Agreement” shall mean that certain Mutual Confidentiality Agreement between
Buyer and Seller dated August 28, 2007.


 


1.29         “Copyrights”
shall have the meaning set forth in Section 2.1(d).


 


1.30         “[****]*” shall mean
product returns, charge-backs, rebates or Medicaid, Medicare or other
reimbursements, or similar claims, with respect to [****]*sold by Seller or its
Affiliates for which [****]*.


 


1.31         “Customer Orders”
shall mean orders for Packaged Product from customers of Seller or any of
Seller’s Affiliates.


 


1.32         “CV Products”
shall have the meaning given in the Recitals.


 


1.33         “Drug Products”
shall mean Cardene Drug Product and Retavase Drug Product.


 


1.34         “Effective Date”
shall mean the date first set forth in the opening paragraph of this Agreement.


 


1.35         “Employee Benefit
Plans” shall mean any employee benefit plan, program, policy, practices,
agreement or other arrangement providing benefits to any current or former
employee, officer or director of Seller or its Affiliates or any beneficiary or
dependent thereof that is sponsored or maintained by Seller or its Affiliates
or to which Seller or its Affiliates contributes or is obligated to contribute,
whether or not written, including without limitation any employee welfare
benefit plan within the meaning of Section 3(1) of ERISA, any
employee pension benefit plan within the meaning of Section 3(2) of
ERISA (whether or not such plan is subject to ERISA) and any written
employment, severance, retention, termination, change in control, consulting,
retirement, bonus or other incentive compensation, stock purchase, stock
option, stock award or other equity-based compensation, leave of absence,
lay-off, cafeteria, health, accident, disability, workman’s compensation or
other insurance, vacation or other employee benefit agreement, plan or policy
(other than any governmental program), and any 


 






* Certain information on this page has been omitted and filed
separately with the SEC. Confidential treatment has been requested with respect
to the omitted portions.


 


CONFIDENTIAL
TREATMENT REQUESTED


 


3

















 


related trust, as to which Seller has or may have any obligation or
liability, contingent or otherwise.


 


1.36         “Escrow Agent”
shall have the meaning set forth in Section 3.2.


 


1.37         “Escrow Agreement”
shall have the meaning set forth in Section 3.2.


 


1.38         “Escrow Amount”
shall have the meaning set forth in Section 3.1(c).


 


1.39         “Excluded Assets”
shall have the meaning given in Section 2.2.


 


1.40         “Excluded
Liabilities” shall have the meaning given in Section 2.4.


 


1.41         “FDA” shall
mean the United States Food and Drug Administration, or any successor agency or
entity thereto that may be established hereafter.


 


1.42         “FD&C Act”
shall mean the U.S. Federal Food, Drug and Cosmetics Act, 21 USC § 321 et
seq, as amended.


 


1.43         “GAAP” shall
mean the United States generally accepted accounting principles in effect from
time to time, consistently applied.


 


1.44         “Governmental
Entity” shall mean any court, tribunal, arbitrator, authority, agency,
commission, regulatory, official or other instrumentality of the government of
the United States or of any foreign country, any state or any political
subdivision of any such government (whether state, provincial, county, city,
municipal or otherwise).


 


1.45         “HSR” shall
mean the United States Hart-Scott-Rodino Antitrust Improvements Act of l976, as
amended, and related rules.


 


1.46         “HSR Filings”
shall have the meaning given in Section 8.1.


 


1.47         “IND” shall
mean, with respect to each CV Product, the investigational new drug application
identified on Attachment 2.1(e) hereto.


 


1.48         “Initial FDA
Approval” shall mean the first issuance by the FDA of a written approval
that [****]*.


 


1.49         “Initial Purchase
Price” shall have the meaning given in Section 3.1(a).


 


1.50         “Intellectual
Property shall mean (i) Patents; (ii) Licensed IP Rights; (iii) Trademarks
and Trademark Registrations; (iv) Copyrights; and (v) Trade Secrets.


 


1.51         “Knowledge” shall
mean, whenever any representation or warranty is made by Seller or Buyer “to
the Knowledge” of the Seller or Buyer, (i) the actual knowledge of the 


 






* Certain information on this page has been omitted and filed
separately with the SEC. Confidential treatment has been requested with respect
to the omitted portions.


 


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TREATMENT REQUESTED


 


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officers of the Seller or Buyer, respectively, and (ii) the
knowledge that any such person referenced in clause (i) hereof, as a
prudent business person, would have obtained in the usual course of the
performance of his or her professional responsibilities to such party.


 


1.52         “Liabilities”
shall mean liabilities of any kind or nature, primary or secondary, direct or
indirect, absolute or contingent, known or unknown, liquidated or unliquidated,
including but not limited to any liabilities for claims of product liability,
personal injury or death, liability in tort or contract (including unripened
liabilities due to past actions or sales), indebtedness, and any FDA or other
Governmental Entity action or notification, and all costs and expenses
(including reasonable attorneys’ fees), incurred in connection with the defense
of any such claims.


 


1.53         “Licensed IP
Rights” shall have the meaning given in Section 2.1(b).


 


1.54         “Litigation
Cooperation Agreement” shall mean the agreement between Buyer and Seller,
substantially in the form attached hereto as Exhibit I, pursuant to
which Buyer assumes control of all aspects of the Sun Litigation, Seller agrees
to assist Buyer as required, at Buyer’s expense, in such Sun Litigation, and
Buyer agrees to indemnify Seller with respect to Seller’s post-Closing
assistance in such litigation.


 


1.55         “Marketed Products”
shall mean Cardene IV, Cardene SR and Retavase.


 


1.56         “Marketing and
Promotional Documents” shall have the meaning given in Section 2.1(i).


 


1.57         “Material Adverse
Change” and “Material Adverse Effect” shall mean any event or situation
that has a material adverse change or effect, respectively, on the operations,
assets, Liabilities, results of operations, cash flows or financial condition,
or relations with material customers or material suppliers, of the Business,
taken as a whole, other than any such change or effect resulting from or
arising in connection with (i) [****]*.


 


1.58         “Milestone and
Revenue Payments” shall have the meaning given in Section 3.1(b).


 


1.59         “Milestone
Payments” shall have the meaning given in Section 3.1(b).


 


1.60         “Net Sales”
shall mean, the gross invoiced sales amount of the Cardene [****]* Product
or any Ularitide product, as applicable, [****]*, and in each case less the
following items (“Net Sales Adjustments”) as applicable to the Cardene
[****]* Product or the Ularitide product, as applicable, to the extent such
items are reasonable and customary under industry practices and [****]*and are
consistent in application with [****]*:


 






* Certain information on this page has been
omitted and filed separately with the SEC. 
Confidential treatment has been requested with respect to the omitted
portions.


 


CONFIDENTIAL
TREATMENT REQUESTED


 


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(a)           actual
credits or allowances granted upon returns, rejections or recalls (due to
spoilage, damage, expiration of useful life or otherwise), retroactive price
reductions, or billing corrections during the accounting period in which such
sales are recorded;


 


(b)           invoiced
freight, postage, shipping and insurance, handling, export fees or tariffs,
customs expenses and other transportation costs actually incurred by Buyer;


 


(c)           credits
or allowances actually granted including, without limitation, quantity, cash
and other trade discounts (collectively, “Credits”), provided, however,
Credits shall not include any credit, allowance or discount given with respect
to the sale of the [****]*;


 


(d)           taxes
(including, without limitation, sales, value-added or excise taxes, but
excluding income taxes imposed on the income of Buyer or its Affiliates and
withholding taxes imposed on amounts payable to Buyer or its Affiliates),
tariffs, customs duties, surcharges and other governmental charges incurred in
connection with the production, sale, transportation, delivery, use,
exportation or importation of CV Products that are incurred at time of sale or
are directly related to the sale;


 


(e)           discounts,
refunds, rebates, charge backs, fees, credits or allowances (including, without
limitation, amounts incurred in connection with government-mandated rebate and
discount programs, third party rebates and charge backs, hospital buying
group/group purchasing organization administration fees and managed care
organization rebates) actually deducted from payment of invoices by customers
or paid to customers during the accounting period in which such sales are
recorded, offset by any such amounts that had been deducted from invoices or
paid to customers in error and have been paid back to Buyer; and


 


(f)            distribution
fees and sales commissions to third parties, actually paid or incurred at the
time of sale and which effectively reduce the selling price,


 


all
in accordance with standard allocation procedures, allowance methodologies and
accounting methods consistently applied. 
For the avoidance of doubt, the transfer of any Cardene [****]* Product
by Buyer or its Affiliates to another Affiliate of Buyer for purposes of sale
to an independent third party shall not be considered a sale; in such cases,
Net Sales shall be determined based on the gross invoiced sales by such
Affiliate to an independent third party, less the Net Sales Adjustments allowed
under this Section.


 


1.61         “Net Sales
Adjustments” shall have the meaning given in Section 1.60.


 


1.62         “NDA” shall
mean, with respect to each CV Product, the new drug application identified on Attachment 2.1(e) hereto.


 


1.63         “Non
Product-Specific Manufacturing Information” shall have the meaning given in
Section 2.1(g).


 






* Certain information on this page has been omitted and filed
separately with the SEC. Confidential treatment has been requested with respect
to the omitted portions.


 


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1.64         “Packaging
Inventory” shall have the meaning given in Section 2.1(v).


 


1.65         “Packaged Products”
shall mean Cardene Packaged Product and Retavase Packaged Product.


 


1.66         “Patents”
shall have the meaning given in Section 2.1(a).


 


1.67         “[****]* shall mean
the [****]*


 


1.68         “Product Inventory”
shall mean Cardene Product Inventory and Retavase Product Inventory.


 


1.69         “Product-Specific
Manufacturing Information” shall have the meaning given in Section 2.1(f).


 


1.70         “Product
Specifications” shall mean the specifications for bulk active
pharmaceutical ingredients for the respective Marketed Products, and for the
respective Drug Products, as set forth in Attachments 1.70(a) and (b),
respectively.


 


1.71         “Purchase Price”
shall have the meaning given in Section 3.1.


 


1.72         “Raw Materials and
WIP” shall mean all of the raw materials and work in progress owned by
Seller or its Affiliates for use in the manufacture of the CV Products, in
existence as of the Closing.


 


1.73         “Registrations”
shall have the meaning given in Section 2.1(e).


 


1.74         “Research and
Development Materials” shall have the meaning given in Section 2.1(h).


 


1.75         “Retavase”
shall mean each presentation of any pharmaceutical preparation (including
formulation changes and production intermediates) containing the active
pharmaceutical ingredient reteplase, whether registered, marketed or in
development by Seller or its Affiliates, as of the Closing Date.


 


1.76         “Retavase Drug
Product” shall mean labeled or unlabelled vials containing the active
pharmaceutical ingredient reteplase.


 


1.77         “Retavase Packaged
Product” shall mean Retavase in the Product Inventory purchased by Buyer
hereunder that is packaged and labeled for sale to the end user.


 


1.78         “Retavase Product
Inventory” shall mean all of the inventory owned by Seller or its
Affiliates of bulk active pharmaceutical ingredient reteplase, Retavase
Packaged Product and Retavase Drug Product, in existence as of the Closing.


 






* Certain information on this page has been omitted and filed
separately with the SEC. Confidential treatment has been requested with respect
to the omitted portions.


 


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TREATMENT REQUESTED


 


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1.79         “Revenue Payments”
shall have the meaning given in Section 3.1(b).


 


1.80         “SEC” shall
mean the United States Securities and Exchange Commission.


 


1.81         “Seller” shall
have the meaning given in the Preamble.


 


1.82         “Seller
Indemnitees” shall have the meaning given in Section 13.2.


 


1.83         “[****]* shall mean
the [****]*.


 


1.84         “Sun Litigation”
shall mean all rights relating to the patent infringement lawsuit in the United
States District Court for the District of New Jersey (New Jersey Court) filed
by Seller against Sun Pharmaceutical Industries Ltd. (“Sun”) seeking,
among other things, to enjoin Sun’s infringement of Seller’s United States
Patent Number 5,164,405, titled “Nicardipine pharmaceutical composition for
parenteral administration” and to stay any sale of Sun’s Abbreviated New Drug
Application product until at least the expiration of such patent, a related
lawsuit filed by Seller in United States District Court for the Eastern
District of Michigan, and all other related litigation between Seller and Sun,
and any claims and counterclaims associated therewith.


 


1.85         “Survival Date”
shall have the meaning given in Section 13.1.


 


1.86         “Tangible Assets”
shall have the meaning given in Section 2.1(l).


 


1.87         “Tax” and “Taxes”
shall mean all present or future taxes, charges, fees, levies, or other
assessments including, without limitation, income, excise, property, value
added, real estate, sales, use, payroll, employment, unemployment, transfer,
social security, alternative, add-on minimum and franchise taxes imposed by any
federal, state, county, or local government, or a subdivision or agency
thereof.  Such term shall include any
interest, penalties, or additions payable in connection with such taxes,
charges, fees, levies, duties, or other assessments.


 


1.88         “Territory” (i) for
Cardene shall mean the United States of America and its possessions and
territories; (ii) for Retavase shall mean Canada and the United States of
America and its possessions and territories; and (iii) for Ularitide shall
mean worldwide.


 


1.89         “Third Party
Consents” shall have the meaning given in Section 6.4.


 


1.90         “Trade Secrets”
shall mean all technology, trade secrets and other confidential information,
know-how, proprietary processes, formulae, algorithms, models, and
methodologies that are related to the Business.


 


1.91         “Trademarks”
shall mean all trademarks, service marks, trade names, names, slogans,
taglines, logos, design marks, trade dress, product designs, and product
packaging, 


 






* Certain information on this page has been omitted and filed
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to the omitted portions.


 


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TREATMENT REQUESTED


 


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including all applications for and registrations of the foregoing, and
including those at common law that are related to the CV Products.


 


1.92         “Trademark
Registrations” shall have the meaning given in Section 2.1(c).


 


1.93         “Transition
Services Agreement” shall mean the transition services agreement to be
entered into by Buyer and Seller, at the request of Buyer as contemplated in Section 8.7,
whereby Seller shall, for fees specified therein, provide to Buyer certain
services relating to the transition of the Business.


 


1.94         “Ularitide”
shall mean each presentation of any pharmaceutical preparation (including
formulation changes and production intermediates) containing the active
pharmaceutical ingredient urodilatin, whether registered, marketed or in
development by Seller or its Affiliates, as of the Closing Date.


 


1.95         “Worldwide Safety
Reports” shall have the meaning given in Section 2.1(j).


 


ARTICLE
2


 


TRANSFER OF ASSETS; LICENSE AND
SUBLICENSE


 


2.1           Purchase and Sale
of Assets.  Subject to the terms and
conditions of this Agreement, Seller shall sell, transfer, assign, convey,
deliver, license or sublicense, as specified below, to Buyer, or shall cause to
be sold, transferred, assigned, conveyed, delivered, licensed or sublicensed,
as specified below, to Buyer, and Buyer shall acquire all of Seller’s right,
title and interest in and to the properties and assets of Seller identified in
this Section 2.1 (collectively, the “Assets”).


 


(a)           Patents.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all of Seller’s rights, title and interest in
and to the patent filings related to the CV Products listed in Attachment
2.1(a), and any patents of addition, re-examinations, reissues, extensions,
granted supplementary protection certifications, substitutions, confirmations,
registrations, revalidations, revisions, additions and the like, of or to said
patents and any and all divisionals, continuations and continuations-in-part, and
any patents issuing therefrom, as well as any patent applications related
thereto (collectively, the “Patents”). 
Seller hereby retains a royalty-free right and license, including the
right to sublicense, under the Patents, solely to the extent necessary for, and
solely for the purposes of, performing Seller’s obligations under this
Agreement and the Transition Services Agreement and only until the completion
of Seller’s obligations hereunder and thereunder.


 


(b)           Licensed IP
Rights.  Upon Closing, Seller shall
transfer, assign, convey and deliver, or shall cause to be sold, transferred,
assigned, conveyed and delivered to Buyer, all of Seller’s rights under all
patents, know-how and other intellectual property rights which Seller has a
right under contract to use and which are used in the Business and those
intellectual property rights contained in the license agreements included as
part of the Assumed Contracts or as otherwise set forth on Attachment 2.1(b),
but subject to any restrictions and obligations in 


 


CONFIDENTIAL
TREATMENT REQUESTED


 


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such license agreements (the “Licensed IP Rights”).  Seller hereby retains a royalty-free right
and license under the Licensed IP Rights for use in the Business, solely to the
extent necessary for, and solely for the purposes of, performing Seller’s
obligations under this Agreement and the Transition Services Agreement, and
only until the completion of Seller’s obligations hereunder and thereunder.


 


(c)           Trademark Registrations.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all of Seller’s rights, title and interest in
and to all Trademarks used in the Business and as set forth on Attachment
2.1(c), together with (i) all common law rights to the Trademarks, (ii) the
goodwill of the Business symbolized by the Trademarks, (iii) all causes of
actions, claims and demands or other rights for, or arising from any infringement,
dilution, unfair competition, or other violation, including past infringement,
dilution, unfair competition, or other violation, of the Trademarks, and (iii) all
rights corresponding thereto throughout the world (the “Trademark
Registrations”).


 


(d)           Copyrights.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all of Seller’s rights, title and interest in
and to registered and unregistered copyrights, including all related
registrations, applications and common law rights, in any labels, product
marketing materials or other copyrighted works related to the CV Products (the
“Copyrights”).


 


(e)           Registrations.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all of Seller’s rights, title and interest in
and to the regulatory files and approvals, registrations and governmental
authorizations, each NDA, each IND, compliance notices, licenses and permits,
and any applications to the FDA or the comparable foreign law or bodies in
effect or pending at the Closing Date, and all materials and information
relating to the FDA and other Governmental Entity approvals for the CV Products
as set forth on Attachment 2.1(e), and all information contained therein
(collectively, the “Registrations”).


 


(f)            Product-Specific
Manufacturing Information.  Upon
Closing, Seller shall sell, transfer, assign, convey and deliver, or shall
cause to be sold, transferred, assigned, conveyed and delivered to Buyer all of
Seller’s rights, title and interest in and to all of Seller’s manufacturing
information (the “Product-Specific Manufacturing Information”) used
solely and exclusively in the Business. 
Seller shall retain a non-exclusive license to use Product-Specific
Manufacturing Information, solely for purposes of fulfilling its obligations
under this Agreement and the Transition Services Agreement, and only until
completion of Seller’s obligations hereunder and thereunder.


 


(g)           Non
Product-Specific Manufacturing Information. 
Upon Closing, Seller shall grant, or shall cause to be granted to Buyer,
a perpetual, paid up, irrevocable, royalty-free, non-exclusive license, with
the right to sublicense, to use, only in the Business, any manufacturing
information that is used by Seller both in the Business and also in other
business activities of Seller (the “Non-Product Specific Manufacturing
Information”).  Seller shall retain a
non-exclusive license to use Non-Product-Specific Manufacturing Information in
other business activities of Seller.


 


CONFIDENTIAL
TREATMENT REQUESTED


 


10














 


(h)           Research and Development Materials.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, (i) originals of all documents and
electronically stored information (excluding e-mails or other electronic
correspondence not readily available in hard copy) to the extent related to the
research and development of the CV Products that are owned or controlled by
Seller or its Affiliates and any of their respective agents, and
(ii) copies of all other documents and electronically stored information
(excluding e-mails or other electronic correspondence not readily available in
hard copy) to the extent related to the research and development of the CV
Products (the “Research and Development Materials”).  After Closing, Seller shall retain a right to
use the Research and Development Materials, solely for purposes of fulfilling
its obligations under this Agreement and the Transition Services Agreement, and
only until completion of Seller’s obligations hereunder and thereunder.


 


(i)            Marketing and Promotional
Documents.  Upon Closing, Seller
shall sell, transfer, assign, convey and deliver, or shall cause to be sold,
transferred, assigned, conveyed and delivered to Buyer, all marketing and
promotional documents and information (including electronic information, but
excluding e-mails or other electronic correspondence not readily available in
hard copy) related to the CV Products existing on the Closing Date, owned by
Seller or its Affiliates, such as customer lists, marketing and promotional
plans, documents and materials, material contained on Seller’s internet sites, field force training manuals and materials, and the like,
solely to the extent relating exclusively to the Business (the “Marketing
and Promotional Documents”).  Buyer’s
use of the Marketing and Promotional Documents shall be subject to Section 10.12.


 


(j)            Worldwide Safety Reports.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all worldwide safety reports in the possession
or control of Seller or its Affiliates with respect to the CV Products in
existence as of the Closing (the “Worldwide Safety Reports”).


 


(k)           Clinical Data.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all clinical data related to the CV Products
and which is contained in Seller’s databases or otherwise in Seller’s
possession or control (the “Clinical Data”).


 


(l)            Tangible Assets.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, certain tangible assets, as listed in Attachment
2.1(l) (the “Tangible Assets”).


 


(m)          Domain Names.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all of Seller’s rights, title and interest in
and to the domain names used primarily in the Business and listed in Attachment
2.1(m) (collectively, the “Domain
Names”).


 


(n)           Product Inventory.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, the Product Inventory.


 


CONFIDENTIAL TREATMENT REQUESTED


 


11

















 


(o)           Raw Materials and WIP.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, the Raw Materials and WIP.


 


(p)           Assumed Contracts.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all rights and benefits of Seller in existence
as of the Closing Date or arising after the Closing Date under the contracts
listed in Attachment 2.1(p) (the “Assumed Contracts”),
including any rights to Intellectual Property. 
The Assumed Contracts shall be deemed to include all purchase orders and
change orders related thereto.


 


(q)           Clinical Trial Materials.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all of Seller’s rights, title and interest in
and to the Clinical Trial Materials.


 


(r)            Clinical Trial Study Reports.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all of Seller’s rights, title and interest in
and to the Clinical Trial Study Reports.


 


(s)           Sun Litigation.  Upon Closing, Seller shall sell, transfer, assign,
convey and deliver, or shall cause to be sold, transferred, assigned, conveyed
and delivered to Buyer, all of Seller’s rights relating to the Sun Litigation,
including, without limitation, all documents and information and other things
gathered or produced by any party in relation thereto.


 


(t)            Books and Records.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver, or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer all Books and Records.


 


(u)           Customer Orders.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all of Seller’s right, title and interest in
all unfilled orders for the CV Products, including without limitation, all
unfilled Customer Orders as of the Closing Date (i.e. Customer Orders to the
extent that (i) the Packaged Products at issue have not been shipped to
the applicable customer as of the Closing Date and (ii) Buyer (rather than
Seller or any of its Affiliates) would be paid by the applicable customer after
shipment by Buyer following the Closing Date), a list of which shall be
provided to Buyer within [****]* after the Closing Date.


 


(v)           Packaging Inventory.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all packaging material for the Marketed
Products, including all package labels and product inserts used in connection
with the Marketed Products owned or controlled by Seller or its Affiliates as
of the Closing (the “Packaging Inventory”).


 






* Certain
information on this page has been omitted and filed separately with the
SEC.  Confidential treatment has been
requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


12

















 


(w)          Other Intellectual Property.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer all of Seller’s rights, title and interest in
and to the Trade Secrets and other intellectual property not hereto forth
assigned that are used solely in the Business.


 


2.2           Excluded Assets.  Buyer hereby acknowledges that Seller is not
transferring hereunder any assets, rights or interests of Seller or its
Affiliates not specifically set forth in Section 2.1 (collectively,
the “Excluded Assets”), including, without limitation:


 


(a)           any contracts or agreements with any
third party that are not Assumed Contracts or identified in Section 2.1(b);


 


(b)           any assets or rights used in the
research, development, manufacture, control, packaging or release, marketing or
sale of products other than the CV Products, excluding such assets or rights of
Seller or its Affiliates that were used primarily in, or were otherwise
necessary for the conduct of, the Business on the Effective Date that are
either (i) Assets (transferred to Buyer pursuant to Section 2.1)
or (ii) are covered in Section 10.1(a);


 


(c)           any assets or rights, including,
without limitation, technical information 
and intellectual property, that are not used exclusively in the Business
and are used in other business activities of Seller, excluding such assets or
rights of Seller or its Affiliates that were used primarily in, or were
otherwise necessary for the conduct of, the Business on the Effective Date that
are either (i) Assets (transferred to Buyer pursuant to Section 2.1)
or (ii) are covered in Section 10.1(a);


 


(d)           equipment, computer software, and
computer hardware, except as listed on Attachment 2.1(b) or Attachment
2.1(l);


 


(e)           all Accounts Receivable arising on or
prior to the Closing Date; and


 


(f)            corporate records (financial
statements, formation documents, stock records, board resolutions and minutes,
and the like).


 


2.3           Assumed Liabilities.  Buyer shall assume and agree to honor, pay
and discharge when due only the following Liabilities of Seller (the “Assumed Liabilities”), and no
others:


 


(a)           all Liabilities of Seller under the
Assumed Contracts, but only to the extent such Liabilities arise from any
event, circumstance or condition occurring after the Closing Date;


 


(b)           all Liabilities of Seller under the
Registrations to be performed after the Closing Date, but only to the extent
such Liabilities relate to any event, circumstances or conditions occurring
after the Closing Date;


 


(c)           all Liabilities relating to the Sun
Litigation, other than (i) Liabilities that arise as a result of actions
taken or omitted by Seller and its Affiliates on or prior to the Closing Date
(unless taken or omitted with the consent of Buyer), and (ii) all fees,
costs and expenses incurred by or on behalf of Seller or any of its Affiliates
with respect to the Sun Litigation on or 


 


CONFIDENTIAL TREATMENT REQUESTED


 


13

















 


prior to the Closing Date
(including attorneys’ fees);


 


(d)           all other Liabilities (other than
Excluded Liabilities) arising out of the conduct of the Business or arising out
of or related to the Assets, but in each case solely to the extent such
Liabilities are incurred or relate to events, circumstances, conditions,
actions or activities occurring after the Closing Date, including, without
limitation, any product liability, product warranty, product return,
charge-back, rebate or Medicaid, Medicare or other reimbursements, or similar
claim, related to the CV Products sold after the Closing Date;


 


(e)           all [****]*


 


(f)            all Liabilities relating to Taxes
attributable to ownership of the Assets and operation of the Business during
periods beginning after the Closing Date, but not including, for the avoidance
of doubt, Taxes that are payable after the Closing Date relating to taxable
periods, or portions thereof, ending on or prior to the Closing Date,
determined, in the case of any period that includes but does not end on the
Closing Date, on a pro rata per diem basis; and


 


(g)           all costs and expenses incurred after
the Closing Date in connection with or related to the[****]*, including without
limitation, any and all work or agreements related thereto, and the
[****]*relating to the [****]*, [****]*.


 


2.4           Excluded Liabilities.  Except for the Assumed Liabilities, Buyer
shall not assume by virtue of this Agreement or the transactions contemplated
hereby, and shall have no liability for, any Liabilities of Seller or any of
its Affiliates (including, without limitation, those related to the Business)
of any kind, character or description whatsoever (the “Excluded Liabilities”).  Seller shall discharge in a timely manner or
shall make adequate provision for all of the Excluded Liabilities that affect
the Business, Assets or Assumed Liabilities, provided that Seller shall have
the ability to contest, in good faith, any such claim of liability asserted in
respect thereof by any person or entity. 
Excluded Liabilities shall include, without limitation:


 


(a)           all Taxes (other than Taxes that are
Assumed Liabilities) including those that result from or have accrued in
connection with the operation of the Business on or prior to the Closing Date;


 


(b)           any Liability or obligation of Seller
of any nature owed to any employees, directors, former employees, agents or
independent contractors, whether or not employed by Buyer after the Closing,
that (A) arises out of or relates to the employment or service provider
relationship between Seller or its Affiliates (or any predecessor in interest)
and any such individual(s) (including, but not limited to, claims for
compensation, discrimination, harassment, or retaliation and any Liability
under Seller’s Employee Benefit Plans); or (B) arises out of or relates to
events, circumstances or conditions occurring on or prior to the Closing Date
(including the transactions contemplated by this Agreement);


 


(c)           all Accounts Payable arising on or
prior to the Closing Date;


 






* Certain
information on this page has been omitted and filed separately with the
SEC.  Confidential treatment has been
requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


14

















 


(d)           Liabilities of Seller under the
Assumed Contracts that were incurred, arose or became payable on or prior to
the Closing Date;


 


(e)           all Liabilities of Seller and its
Affiliates under the Registrations, to be performed, or which relate to any
event, circumstance or condition occurring, on or prior to the Closing Date;


 


(f)            all Liabilities with respect to
accrued expenses incurred on or prior to the Closing in connection with the CV
Products or the Business;


 


(g)           all Liabilities arising out of claims
of third parties for damage or injury suffered as the result of defective
products sold or manufactured on or prior to the Closing Date;


 


(h)           all Liabilities incurred (i) up
through the Closing Date and (ii) after the Closing Date [****]*, in
connection with or related to the [****]*, including without limitation the
[****]* and of any and all work and agreements relating thereto, and the
[****]* relating the [****]*; and


 


(i)            Liabilities of Seller and its
Affiliates relating to or arising under this Agreement.


 


2.5           Risk of Loss.  All risk of loss with respect to the Assets
(whether or not covered by insurance) shall be on Seller or its Affiliates up
to the time of Closing, whereupon such risk of loss shall pass to Buyer.


 


2.6           Taxes.  All applicable sales, transfer, documentary,
use, stamp, filing, recording, conveyance, excise, mortgage, documentary
recording taxes and other similar taxes and fees that may be levied on the
sale, assignment, transfer or delivery of the Assets to be sold and transferred
as provided in this Agreement shall be borne by the parties equally.  The parties shall cooperate with each other
and use commercially reasonable efforts to minimize such Taxes.


 


2.7           Third-Party Consents.  To the extent that any Assumed Contract,
Intellectual Property or Registration is not assignable without the consent of
another party, this Agreement shall not constitute an assignment or an
attempted assignment thereof if such assignment or attempted assignment would
constitute a breach thereof or a default thereunder.  Seller and Buyer shall each use commercially
reasonable efforts to obtain the consent of [****]*, to the extent required,
for the assignment of any Assumed Contracts to which it is a party.  Seller shall use its commercially reasonable
efforts to obtain any and all consents necessary for the effective assignment
to and assumption by Buyer of the Assumed Contracts, the Intellectual Property,
the Registrations and the Assumed Liabilities, including the Third Party
Consents set forth on Attachment 4.2(a) hereto and the consents set
forth on Schedule 6.3 of the Disclosure Schedule.  All such consents shall be in writing and
executed counterparts thereof shall be delivered promptly to Buyer.  If any such consent shall not be obtained,
Seller shall cooperate with Buyer in any reasonable arrangement designed to
provide for Buyer the benefits intended to be assigned 


 






* Certain
information on this page has been omitted and filed separately with the
Sec. Confidential treatment has been requested with respect to the omitted
portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


15

















 


to Buyer under
the relevant Assumed Contract, Intellectual Property or Registration, including
enforcement at the cost and for the account of Buyer of any and all rights of
Seller against the other party thereto arising out of the breach or
cancellation thereof by such other party or otherwise.  If and to the extent that such arrangement
cannot be made, Buyer shall have no obligation pursuant to Section 2.3
or otherwise with respect to any such Assumed Contract, Intellectual Property
or Registration.  The provisions of this Section 2.7
shall not affect the right of Buyer not to consummate the transactions
contemplated by this Agreement if the condition to its obligations hereunder
contained in Section 9.1 has not been fulfilled.


 


ARTICLE
3


 


CONSIDERATION


 


3.1           Purchase Price.  As full consideration of Seller’s sale,
transfer, assignment, conveyance, delivery, license or sublicense of the Assets
to Buyer, Buyer will assume the Assumed Liabilities and pay and deliver or
cause to be paid and delivered to Seller, in the manner set forth in this
Section, an aggregate purchase price (the “Purchase Price”) equal to the
sum of the Initial Purchase Price set forth in Section 3.1(a) and
the Milestone and Revenue Payments, if applicable, set forth in Section 3.1(b).


 


(a)           Initial Purchase Price.  On the Closing Date, Buyer shall pay Seller
Eighty Five Million United States Dollars ($85,000,000) (the “Initial
Purchase Price”), less the Escrow Amount.


 


(b)           Milestone and Revenue Payments.  In addition to the payment made by Buyer
pursuant to Section 3.1(a), after the Closing Date, Buyer shall
make the following non-refundable cash payments to Seller, in each case,
subject to the satisfaction of the respective milestones:


 


i.              Cardene [****]* Product
Approval Milestone Payment.  Twenty
Five Million United States Dollars ($25,000,000) shall become payable upon
Buyer’s receipt of the Initial FDA Approval, such payment to be made promptly,
and in no event later than [****]*, after receipt of such approval.


 


ii.             Revenue Milestone
Payments.


 


(1)            Thirty Million United States Dollars
($30,000,000) payable to Seller if and when the Net Sales of the Cardene [****]*
Product in any twelve consecutive month period, calculated as of the end of
each calendar month, first exceed Eighty Million United States Dollars
($80,000,000).


 


(2)            Thirty Million United States Dollars
($30,000,000) payable to Seller if and when the Net Sales of the Cardene
[****]* Product in any twelve consecutive 


 






* Certain information on
this page has been omitted and filed separately with the SEC.  Confidential treatment has been requested
with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


16

















 


month period, calculated
as of the end of each calendar month, first exceed One Hundred Fifty Million
United States Dollars ($150,000,000).


 


(3)           Each payment pursuant to subsections
(1) and (2) shall, if applicable, be made promptly, but no later than
[****]*, following the occurrence of the relevant milestone.


 


The milestone payments under subsections
(i) and (ii) of this Section 3.1(b) are collectively
referred to as “Milestone Payments”.


 


iii.            Other Revenue Payments.  Buyer shall pay to Seller, on a [****]* basis
as provided in Section 3.3, (A) an amount equal to ten percent
(10%) of the Net Sales of the Cardene [****]* Product from sales occurring
after the Closing Date and prior to the earlier to occur of
(i) December 31, 2014 and (ii) the [****]*, and (B) on a
country-by-country basis, an amount equal to five (5%) of the Net Sales of any
Ularitide product from sales occurring after the Closing Date and prior to the
later to occur of (i) the expiration of the applicable exclusivity period
in such country, and (ii) the expiration of the last Patent covering
Ularitide in such country.  The payments
under this subsection iii of Section 3.1(b) are referred to as
“Revenue Payments” and Revenue Payments and Milestone Payments are
collectively referred to as “Milestone and Revenue Payments”.


 


(c)           Deposit in Escrow.  At Closing, Buyer shall deliver cash from the
Initial Purchase Price in the amount of Six Million United States Dollars
($6,000,000) (the “Escrow Amount”) to the Escrow Agent pursuant to the
Escrow Agreement, to be held and disbursed upon and subject to all of the terms
and conditions set forth therein.


 


3.2           Method of Payment.  The payments to be made pursuant to Section 3.1
shall be made by wire transfer in immediately available funds as follows:


 


(a)           delivery of the Initial Purchase
Price, less the Escrow Amount, to such account as Seller shall have designated
to Buyer in writing not less than two (2) business days prior to the
Closing Date, and any such payment shall be deemed to have been paid when
recorded in the proper account;


 


(b)           delivery to Wells Fargo Bank,
National Association (the “Escrow Agent”) of the Escrow Amount in
accordance with the wire transfer instructions of the Escrow Agent delivered to
Buyer in writing not less than two (2) business days prior to the Closing
Date.  The Escrow Amount shall be held in
escrow by the Escrow Agent pursuant to the terms of an escrow agreement in
substantially the form of Exhibit H attached hereto (the “Escrow
Agreement”) in order to provide a source for the payment of any
[****]*.  The Escrow Agreement shall
provide for the release of any remaining escrow funds to Seller [****]* from
the Closing Date [****]*; and


 






* Certain
information on this page has been omitted and filed separately with the
SEC.  Confidential treatment has been
requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


17

















 


(c)           delivery of the Milestone and Revenue
Payments to such account as Seller shall have designated to Buyer in writing
not less than two (2) business days prior to the Closing Date (or such
other account as designated by Buyer after Closing delivered pursuant to the
notice provision herein).


 


3.3           Revenue Payments; Reports.  Buyer shall pay to Seller, [****]*, any
Revenue Payments that become due.  Such
payments will be accompanied by a report containing the following information
as it pertains to the [****]* just ended:


 


(a)           the gross sales of the Cardene
[****]* Product (in the aggregate and separately stated for each selling
party);


 


(b)           the computation of the Net Sales of
Cardene [****]* Product actually received by Buyer based on the U.S. dollar
value determined in (a) above, including an accounting of any Net Sales
Adjustments from the gross sales to arrive at the Net Sales amount, and the
exchange rates used for converting foreign currency to U.S. dollars in
accordance with Section 3.4 hereof;


 


(c)           the computation of earned Revenue
Payments; and


 


(d)           such other information necessary to
confirm the Revenue Payments payable pursuant to Section 3.1(b)(iii) as
Seller may reasonably request.


 


If no earned Revenue Payments are due for a
[****]*, Buyer will so report.  At the
end of the [****]* in which the Revenue Payments are no longer due, Buyer will
provide to Seller a final written report that complies in all respects with
this Section 3.3.  Buyer will
require each Affiliate and sublicensee to make appropriate reports to Buyer in
a timely manner to enable Buyer to comply with this Section 3.3.  Buyer shall provide Seller a similar report
containing the information in subsections (a) and (b) above upon
payment of the Milestone Payments.


 


3.4           Accounting.  The Net Sales used for computing the Revenue
Payments payable to Seller by Buyer will be computed in U.S. dollars.  If Buyer or an Affiliate or a sublicensee
sells any Cardene [****]* Product for currency other than U.S. currency, for purposes
of calculating the earned Revenue Payments payable to Seller, Buyer will
determine the Net Sales for the Cardene [****]* Product in such currency and
then convert the Net Sales into its equivalent in U.S. currency using the
average New York foreign exchange selling rate for such currency for the month
in which such sale is reported, as published by The Wall Street Journal.  If such rate is not so published, the
conversion will be at the average selling rate for such currency for the month
in which such sale is reported, as published by a leading New York, New York
bank chosen by Buyer and reasonably acceptable to Seller (such acceptance not
to be unreasonably withheld, delayed or conditioned).


 


3.5           Records; Audits.  Buyer shall keep, and shall cause its
Affiliates and third party sublicensees to keep, full and accurate records and
books of account containing all particulars that may be necessary for the
purpose of calculating Net Sales.  Such
records and books of account, with all necessary supporting data, shall be kept
by Buyer (or its Affiliates or 


 






* Certain
information on this page has been omitted and filed separately with the SEC.  Confidential treatment has been requested
with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


18

















 


sublicensees)
at its place of business or at another location under Buyer’s control for the
[****]* next following the end of the calendar year to which each shall
pertain.  Upon written request from Seller,
and in no event more than (i) [****]* and (ii) [****]* of the Closing
Date thereafter, Buyer shall permit an independent nationally recognized
accounting firm selected by Seller and reasonably acceptable to Buyer, which
acceptance shall not be unreasonably withheld, delayed or conditioned, to have
access after reasonable advance notice ([****]*) and during normal business
hours to such records and books of account as may be reasonably necessary to
verify the accuracy of the Buyer’s reports of Net Sales as provided
herein.  Notwithstanding the preceding
sentence, Seller may make additional requests if Seller in good faith believes
that there is reasonable cause to make such additional requests based on
findings in prior reports.  All such
verifications shall be conducted at the expense of Seller.  In the event any such audit concludes that
adjustments should be made in Seller’s favor, Seller shall provide to Buyer a
complete copy of the accountant’s written report reflecting such
adjustments.  Buyer shall have the right
to dispute such adjustments in good faith by providing written notice of such
dispute to Seller within thirty (30) days of the date on which the applicable
written report is received by Buyer.  Any
dispute shall be resolved in accordance with the provisions of Section 14.4.  Buyer shall pay the amounts, if any, finally
determined to be due (plus accrued interest thereon, from the date originally
due, at the annual rate announced by the Bank of America (or any successor) as
its prime rate in effect on the date that such payment was first due [****]*
promptly, and in no event later than thirty (30) days after the date Buyer
receives Seller’s accounting firm’s written report or the dispute is resolved
in accordance with Section 14.4, as the case may be.  The fees charged by the accounting firm shall
be paid by [****]* unless the audit (or final resolution, if applicable)
reflects that adjustments in favor of [****]* for the [****]* or more of the
aggregate amount paid or payable by [****]* to [****]* during the period, in
which case [****]* shall pay the reasonable fees and expenses charged by such
accounting firm, promptly after receipt of the invoice for such audit.  Seller agrees that all information subject to
review under this Section 3.5 is Confidential Information of Buyer
and that it shall cause its accounting firm to retain all such information
subject to the confidentiality restrictions set forth in this Agreement.


 


3.6           Late Payments.  Any payment owed under this Agreement that is
not paid on or before the date that is [****]* following the date on which such
payment becomes due pursuant to this Agreement shall accrue interest, to the
extent permitted by law, at the annual rate announced by Bank of America (or
its successor) as its prime rate in effect on the date that such payment was
first due [****]* until the date on which such payment is made.


 


3.7           Allocation of Purchase Price.  Prior to Closing, Buyer and Seller will make
reasonable efforts to agree on an allocation of the Initial Purchase Price (and
any Assumed Liabilities properly included for tax purposes) among the Assets in
a manner that is consistent with the principles of Section 1060 of the
Internal Revenue Code of 1986, as amended (or any successor provision of any future
tax law, or any comparable provision of state, local or foreign tax law).  If the parties are able to agree to an
allocation of the Initial Purchase Price pursuant to 


 






* Certain
information on this page has been omitted and filed separately with the SEC.  Confidential treatment has been requested
with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


19

















 


the preceding
sentence, Buyer and Seller will (i) act in accordance with such allocation
in the preparation and filing of all Tax returns (including the preparation and
filing of IRS Form 8594), (ii) take no position inconsistent with the
allocation for all Tax purposes, and (iii) allocate any post-Closing
payments made pursuant to Sections 3.1 or 3.3 consistent with the
methodology used in such allocation.  In
the event that such allocation is disputed by any taxing authority, the party
receiving notice of the dispute shall promptly notify the other party hereto
and shall forward to such other party copies of all correspondence with such
taxing authority in respect of such disputed allocation.


 


ARTICLE
4


 


CLOSING


 


4.1           Closing.  The Closing of the sale, transfer,
assignment, conveyance, delivery, license or sublicense of the Assets to Buyer,
and the consummation of the other transactions contemplated hereby shall be
held at the offices of Seller (the “Closing”) as promptly as
practicable, but no later than the date five (5) business days after all
conditions (other than the respective delivery obligations of the parties)
hereto have been satisfied or waived, or at such other time or date as may be
agreed to by the parties to this Agreement (the “Closing Date”).  The Closing shall have deemed to have
occurred on 11:59 pm on the Closing Date.


 


4.2           Actions at Closing.  At the Closing, sale, transfer, assignment,
conveyance, delivery, license or sublicense of the Assets to Buyer will be
effected by Seller pursuant to such good and sufficient instruments of
conveyance, transfer and assignment as shall be necessary to transfer to Buyer
good and valid title to the Assets.


 


(a)           Deliveries by Seller at Closing.  The purchase of the Assets by Buyer in
accordance with the terms of this Agreement are subject to Seller’s delivery to
Buyer at the Closing of the following instruments, documents, agreements and
certificates:


 


i.              the General Assignment and Bill of
Sale substantially in the form attached hereto as Exhibit A (the “Bill
of Sale”), duly executed by Seller;


 


ii.             a counterpart of the Assignment and
Assumption Agreement substantially in the form attached hereto as Exhibit B
(the “Assignment and Assumption Agreement”), duly executed by Seller;


 


iii.            the Patent Assignment Agreement
substantially in the form attached hereto as Exhibit C (the “Patent
Assignment Agreement”), duly executed by Seller;


 


iv.            the Trademark Assignment Agreement
substantially in the form attached hereto as Exhibit D (the “Trademark
Assignment Agreement”), duly executed by Seller;


 


v.             the Domain Name Assignment
Agreement substantially in the form attached hereto as Exhibit E
(the “Domain Name Assignment Agreement”), duly executed by Seller;


 


CONFIDENTIAL TREATMENT REQUESTED


 


20














 


vi.            a
counterpart of the Transition Services Agreement, substantially in the form
attached hereto as Exhibit F, duly executed by Seller;


 


vii.           the
Third Party Consents listed in Attachment 4.2(a), in substantially the
form attached hereto as Exhibit G, signed by an authorized
representative of each of the consenting parties to such agreements, and such
Third Party Consents (a) shall not be subject to the satisfaction of any
condition that has not been satisfied or waived, and (b) shall be in full
force and effect;


 


viii.          a
counterpart of the Escrow Agreement, , substantially in the form attached
hereto as Exhibit H, duly executed by Seller and Escrow Agent;


 


ix.            a
counterpart of the Litigation Cooperation Agreement, duly executed by Seller;


 


x.             such
other documents and agreements as may be necessary to effect the transactions
contemplated by this Agreement;


 


xi.            a
certificate executed by a duly authorized officer of Seller certifying that (i) each
of the representations and warranties of Seller set forth in Article 6
of this Agreement that is qualified by materiality is true and correct in all
respects, (ii) each of such representations and warranties that is not so
qualified is true and correct in all material respects, in each case, as of the
Closing Date as though made on and as of the Closing Date or, in the case of
representations and warranties made as of a specified date earlier than the
Closing Date, on and as of such earlier date, except that any such
representation or warranty made as of a specified date shall only need to have
been true and correct on and as of such date, and (iii) all of the terms,
covenants and conditions of this Agreement to be complied with and performed by
Seller, at or prior to the Closing have been duly complied with and performed
in all material respects;


 


xii.           a
certificate of the Secretary of Seller, in form and substance reasonably
satisfactory to Buyer, as to the authenticity and effectiveness of the actions
of the board of directors of Seller authorizing this Agreement and the
transactions contemplated in this Agreement;


 


xiii.          evidence,
in form and substance reasonably satisfactory to Buyer, that Seller has fully
paid all fees, costs and expenses payable pursuant to Section 8.6;


 


xiv.          for
each NDA identified and each IND identified on Attachment 2.1(e), a
letter from Seller to the FDA, in form and substance reasonably satisfactory to
Buyer, stating that all rights with respect to the respective application have
been transferred to Buyer as of the Closing Date; and


 


xv.           a certification as to Seller’s non-foreign status in
accordance with U.S. Treasury Regulations Section 1.1445-2(b)(2).


 


(b)           Deliveries
by Buyer at Closing.  The sale of the
Assets by Seller in accordance with the terms of this Agreement are subject to
Buyer’s delivery to Seller (unless 


 


CONFIDENTIAL TREATMENT REQUESTED


 


21

















 


noted
otherwise) at the Closing of the following instruments, agreements and
certificates:


 


i.              the
Initial Purchase Price, less the Escrow Amount;


 


ii.             evidence
of payment of the Escrow Amount to the Escrow Agent;


 


iii.            a
counterpart of the Assignment and Assumption Agreement, duly executed by Buyer;


 


iv.            a
counterpart of the Transition Services Agreement, duly executed by Buyer;


 


v.             a
counterpart of the Escrow Agreement, duly executed by Buyer and Escrow Agent;


 


vi.            a
counterpart of the Litigation Cooperation Agreement, duly executed by Buyer;


 


vii.           a
certificate executed by a duly authorized officer of Buyer certifying that (i) each
of the representations and warranties of Buyer set forth in Article 7
of this Agreement that is qualified by materiality is true and correct in all
respects, (ii) each of such representations and warranties that is not so
qualified is true and correct in all material respects, in each case, as of the
Closing Date as though made on and as of the Closing Date or, in the case of
representations and warranties made as of a specified date earlier than the
Closing Date, on and as of such earlier date, except that any such
representation or warranty made as of a specified date shall only need to have
been true and correct on and as of such date, and (iii) all of the terms,
covenants and conditions of this Agreement to be complied with and performed by
Buyer, at or prior to the Closing have been duly complied with and performed in
all material respects;


 


viii.          a
certificate of the Secretary of Buyer, in form and substance reasonably
satisfactory to Seller, as to the authenticity and effectiveness of the actions
of the board of directors (and shareholders, if applicable) of Buyer
authorizing this Agreement and the transactions contemplated in this Agreement.


 


ARTICLE 5


 


EMPLOYMENT
MATTERS


 


5.1           Employees.


 


(a)           Notwithstanding
the provisions of the Confidentiality Agreement, Buyer shall have the right
prior to Closing to contact the employees of Seller currently employed in the
Business, who are identified on Attachment 5.1(a) (each, a “Business
Employee”), and to discuss possible terms of employment with such Business
Employees and Buyer may make offers of employment, contingent on the Closing,
to any of such Business Employees in its discretion.  Buyer shall deliver to Seller a list of the
Business Employees to whom Buyer has or intends to make offers of employment
(each, an “Identified Employee”) at least fifteen (15) days prior to 


 


CONFIDENTIAL TREATMENT REQUESTED


 


22

















 


the date of the
Closing.  The Seller shall use reasonable
best efforts to cooperate with Buyer to facilitate the hiring of the Identified
Employees.  Seller and its Affiliates
shall not make competing offers of employment to the Identified Employees and
shall, for a period of [****]* from the Closing Date, refrain from, directly or
indirectly, employing, engaging or seeking to employ or engage any Identified
Employee that has been hired by Buyer, unless such employee (i) has
resigned voluntarily at least [****]* prior to such employment or engagement
(without any solicitation from Seller or any of its Affiliates) or has been
terminated by Buyer after the Closing Date or (ii) responds to any general
media solicitation of employment or engagement by the Seller or its Affiliate.  Notwithstanding the
foregoing, nothing in this Agreement shall constitute a commitment of Buyer to
continue the employment of any Identified Employee for any period following the
Closing Date, nor limit the right of Seller or its Affiliates to change any
terms or conditions of employment of any employed Identified Employee following
the Closing Date.


 


(b)           Prior
to the Closing Date, or as promptly as possible thereafter, and not
withstanding any otherwise applicable Employee Benefit Plan, Seller shall take
such actions, to be in effect as of the Closing Date or as promptly as possible
thereafter, as are necessary to cause all Identified Employees who accept
offers of employment from Buyer (the “Hired Employees”) to be paid, on a
pro-rata basis, any earned sales incentive compensation and other comparable
pay for the period of employment ending on the date of termination of
employment (including, without limitation, the applicable bonuses for 2007 that
would otherwise have been payable pursuant to any Seller Employee Benefit Plan,
to the extent that such bonuses have not been paid prior to Closing), as well
as any accrued vacation pay, sick leave, or other payroll entitlements.  Seller shall waive any notice requirements or
other conditions applicable to any Hired Employee in connection with such
employee’s termination of his or her employment with Seller.


 


(c)           Seller shall take all
action necessary to give any notification required by the Worker Adjustment and
Retraining Notification Act (“WARN”), comply with any requirements of
the Consolidated Omnibus Budget Reconciliation Act of 1985 and pay any and all
severance, vacation, paid time off, unpaid wages, unpaid bonuses, unpaid
commissions or other sums that may be due to Business Employees in connection
with their termination of employment with Seller, if any, or otherwise pursuant
to the terms of any of Seller’s employee benefit plan.  Buyer shall provide to Seller in a timely
manner any information reasonably necessary to determine whether an Identified
Employee has been offered employment in a comparable position and such other
information as is reasonably necessary for Seller to comply with its
obligations, if any, under WARN or any similar state law, rule or
regulation with respect to Seller’s termination of the employment of any
Business Employees.


 






* Certain information on
this page has been omitted and filed separately with the SEC.  Confidential treatment has been requested
with respect to the omitted portions.


 


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ARTICLE 6


 


REPRESENTATIONS
AND WARRANTIES OF SELLER


 


Subject to the exceptions and disclosures listed in the Disclosure
Schedule (including the attachments and exhibits thereto) Seller represents and
warrants to Buyer as follows:


 


6.1           Organization
and Authority.  Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware with full corporate power and authority to
execute and consummate this Agreement, and such other instruments, agreements
and transactions as may be contemplated hereunder and thereunder.  Seller has all requisite corporate power and
authority and all authorizations, licenses, permits and certifications
necessary to carry on the Business as now being conducted and to own, lease and
operate the Assets.  Seller is qualified
as a foreign corporation to do business in every jurisdiction in which the
nature of its business or its ownership of property requires it to be qualified
and in which the failure to be so qualified would have a Material Adverse
Effect.  All corporate acts and other
proceedings required to be taken by or on the part of Seller to authorize
Seller to execute, deliver and perform this Agreement and such other
instruments, agreements and transactions as may be contemplated hereunder, have
been duly and properly taken, and no further action on the part of Seller or
its stockholders is necessary.  This
Agreement has been duly executed and delivered by Seller and constitutes legal,
valid and binding obligations of Seller enforceable in accordance with its
terms, except as such enforceability may be subject to or limited by (i) applicable
bankruptcy, reorganization, insolvency, moratorium and similar laws affecting
the enforcement of creditors’ rights generally and (ii) the rules governing
the availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in
a proceeding in law or equity.


 


6.2           No
Violation or Conflict.  The execution
and delivery by Seller of this Agreement and such other instruments, agreements
and transactions as may be contemplated hereunder, and the consummation by
Seller of the transactions contemplated hereby and thereunder will not (i) violate
any law, statute, rule or regulation or judgment, order, writ, injunction
or decree of any Governmental Entity applicable to Seller, or (ii) materially
conflict with, result in any material breach of, or constitute a material
default (or an event which with notice or lapse of time or both would become a
material default) under the Certificate of Incorporation or bylaws of Seller or
any agreement to which Seller is a party, (iii) materially interfere with
Seller’s performance of its obligations hereunder, or (iv) result in the
creation or imposition of any lien or encumbrance on Seller or the Assets, and
to the Knowledge of Seller, there are currently no proceedings pending before,
or threatened by, any Governmental Entity that could reasonably be expected to
result in the adoption, amendment or issuance of any law, statute, rule or
regulation or judgment, order, writ, injunction or decree materially adverse to
the Assets or the Business.


 


6.3           Consents
and Approvals.  Except as set forth
in Schedule 6.3 of the Disclosure Schedule, no notice to, declaration,
filing or registration with, or authorization, consent or approval of, or
permit from, any Governmental Entity, or any other person or entity, is
required to be made or obtained by Seller in connection with the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby, except with respect to the HSR Filings and
any declarations, filings, registrations, authorizations, consents, 


 


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approvals or
permits which if not obtained or made have not had and would not reasonably be
expected to have individually or in the aggregate a Material Adverse Effect or
materially interfere with Seller’s performance of its obligations hereunder.


 


6.4           Assumed
Contracts.  Seller has made available
to Buyer complete and correct copies of the Assumed Contracts and any
amendments, modifications and supplements thereto.  All the Assumed Contracts are in full force
and effect and are valid, binding and enforceable in accordance with their
terms by and against Seller, except as such enforceability may be subject to or
limited by (i) applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting the enforcement of creditors’ rights
generally; and (ii) the rules governing the availability of specific
performance, injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a proceeding in law
or equity; provided that there may be Assumed Contracts that have expired by
their terms, but contain surviving rights or Liabilities that will be assumed
by Buyer.  Except as set forth in Schedule
6.4(a) of the Disclosure Schedule, neither Seller nor, to the
Knowledge of Seller, any other party to such Assumed Contract is, or has
received notice that it is, in violation or breach of or default under any such
Assumed Contract (or with notice or lapse of time or both, would be in
violation or breach of or default under any such Assumed Contract) in any
material respect.  Schedule 6.4(b) of
the Disclosure Schedule sets forth a list of all Assumed Contracts which
require the consent or waiver of any party to such Assumed Contracts, to the
Assignment of such Assumed Contract as a result of the transactions contemplated
hereby (the “Third Party Consents”).


 


6.5           Title
to Assets.  Upon the consummation of
the transactions contemplated under this Agreement, Buyer will obtain good,
valid and marketable title to all the Assets, free and clear of any and all
liens, encumbrances, charges, claims, pledges, or security interests of any
kind (including those of secured parties). 
Except as set forth in Schedule 6.5 of the Disclosure Schedule,
Seller beneficially owns all of the right, title or other interests to be
transferred to Buyer hereunder with respect to all the Assets, and none of the
Assets is leased, rented, licensed, or otherwise not owned by Seller.  The transactions contemplated hereby
constitute the sale and assignment of substantially all of Seller’s business
relating to the CV Products.


 


6.6           Intellectual
Property.


 


(a)           Attachment
2.1.  Attachment 2.1 sets
forth a complete and accurate list of all of the following throughout the world
granted to, applied for, owned or licensed by Seller in relation to the CV
Products: (i) Patents; (ii) Licensed IP Rights; (iii) Trademarks
and Trademark Registrations; and (iv) Domain Names.  Such list includes, where applicable, the
record owner, jurisdiction and registration and/or application number, and date
issued (or filed) for each of the foregoing. 
The inventorship of the Patents and patent applications within
Intellectual Property other than the Licensed IP Rights (the “Owned IP
Rights”) is true and correct as of the Effective Date.


 


(b)           Title.  Except as otherwise stated on Attachment
2.1, Seller is the sole and exclusive owner of all Owned IP Rights and has
the right to use the Licensed IP Rights as set forth in the applicable Assumed
Contracts.  Seller has the right to
assign to Buyer the Intellectual Property required to be assigned to Buyer
under this Agreement, subject to obtaining the third party consents listed in Attachment
4.2(a).  The Intellectual Property
was either (i) developed by employees of Seller within the scope of their
employment; (ii) developed by independent 


 


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contractors who have
vested all rights in and to such Intellectual Property to Seller pursuant to
written agreements (such as by assignment or work-made-for-hire provisions); or
(iii) obtained by Seller from a third party via a written agreement that
transferred all rights in the Owned IP Rights to Seller or granted Seller a
license to the Licensed IP Rights, as applicable.  No current or former director, officer, or
employee of Seller or its Affiliates (or, to the Knowledge of Seller, any of
its predecessors in interest) will, after giving effect to the transactions
contemplated herein, own or retain any rights to use, and will not have any
claim with respect to any Intellectual Property.  No royalties, honoraria or other fees are
currently due and payable to any third parties for the use of or the right to
use any (i) Owned IP Rights; or (ii) except as set forth in the
Assumed Contracts, Licensed IP Rights.


 


(c)           All
Rights Transferred.  After the
consummation of the transactions contemplated herein, Buyer will own all
rights, title, and interest in and to or have a valid written license to use
all Intellectual Property and the patents included within the Licensed IP Rights,
subject to obtaining the Third Party Consents, on the same terms and conditions
as Seller enjoyed immediately prior to such transactions.  Except for the Third Party Consents, there is
no law, contract or arrangement that would prevent Seller from assigning all
licenses and rights required to be assigned under this Agreement.


 


(d)           Sufficiency
of Title.  Seller is the sole and
exclusive owner of or has valid right to use pursuant to a written signed
agreement, free and clear of all liens with respect to Owned IP Rights and, to
the Knowledge of Seller, free and clear of all liens with respect to Licensed
IP Rights.  To the Knowledge of Seller,
the Intellectual Property constitutes all of the material intellectual property
assets used in or necessary for the conduct of the Business as conducted by
Seller as of the Effective Date.  The
Owned IP Rights, and, to the Knowledge of Seller, the Licensed IP Rights,
currently used in the Business, are in each case subsisting, in full force and
effect, and have not been cancelled, expired, been abandoned, or otherwise
terminated, and payment of all renewal and maintenance fees in respect of the
Owned IP Rights, and, to the Knowledge of Seller, the Licensed IP Rights, and
all filings related thereto, have been duly made.  Seller has been diligent in prosecuting all
applications pending as of the Effective Date related to Owned IP Rights.


 


(e)           Non-infringement.  To
the Knowledge of Seller, the
manufacture, sale and distribution of each CV Product as conducted as of the
Effective Date does not infringe upon, misappropriate, violate or
constitute the unauthorized use of (either directly or indirectly, such as
through contributory infringement or inducement to infringe) any intellectual
property rights of any third party in
the relevant portion of the Territory for such CV Product.


 


(f)            Pending
Claims.  Except as set forth in Schedule
6.6(f) of the Disclosure Schedule, there are no pending or, to the
Knowledge of Seller, threatened claims, suits, arbitrations or other adversarial
proceedings before any court, agency, arbitral tribunal, or registration
authority in any jurisdiction in the applicable Territory challenging Seller’s
ownership or use of any Intellectual Property, or the validity, enforceability,
or registrability of any Owned IP Rights or, to the Knowledge of Seller, any
Licensed IP Rights.


 


(g)           Third
Party Infringement.  Except as set
forth in Schedule 6.6(g) of the Disclosure Schedule, to the
Knowledge of Seller, no third party in any Territory in which Intellectual
Property rights have been granted, is misappropriating, infringing, diluting or



 


CONFIDENTIAL TREATMENT REQUESTED


 


26

















 


violating any Owned IP
Rights, or to the Knowledge of Seller, any Licensed IP Rights, and no claims,
suits, arbitrations or other adversarial claims have been brought or, to the
Knowledge of Seller, threatened against any third party by Seller.


 


(h)           Settlements.  Except as set forth in Schedule 6.6(h) of
the Disclosure Schedule, there are no settlement agreements, coexistence
agreements, consents, licenses, assignments, security agreements, judgments,
consent decrees or judicial or administrative decisions relating to Owned IP
Rights, or to the Knowledge of Seller, the Licensed IP Rights.


 


(i)            Confidentiality.  Seller has taken commercially reasonable
measures to protect the confidentiality of its Trade Secrets and Confidential
Information, including requiring its employees with access to such Trade
Secrets and Confidential Information and other parties having access thereto to
execute written non-disclosure agreements. 
To the Knowledge of Seller, none of the Trade Secrets or Confidential
Information have been disclosed or authorized to be disclosed to any third
party other than pursuant to a non-disclosure agreement.  To the Knowledge of Seller, no third party to
any non-disclosure agreement with Seller is in breach, violation or default
thereof.


 


(j)            Employee
Cooperation.  Each present or past
employee, officer, consultant or any other person who participated on behalf of
Seller in the development of any of the CV Products or any of the Intellectual
Property has executed a valid and enforceable agreement with Seller that (i) conveys
any and all right, title and interest in and to all Intellectual Property
developed by such Person in connection with such Person’s employment or
contract to Seller, (ii) requires such Person, during and after the term
of employment or contract, to cooperate with Seller in the prosecution of any
patent applications filed in connection with such Intellectual Property, (iii) establishes
a representation and covenant by such Person that no process, technique,
innovation or other work product provided to Seller is or will be derived from
or otherwise constitute the proprietary information of a prior employer or
contractor, in contravention of any prior confidentiality agreement, and (iv) obligates
such Person to keep any Confidential Information of Seller confidential both
during and after the term of the employment or contract.  To the Knowledge of Seller, no employee or
consultant of Seller is in violation of any laws or regulations relating to
Intellectual Property applicable to such employee or consultant, or any term of
any employment agreement, confidentiality agreement, patent or invention
disclosure agreement or other contract relating to the relationship of such
employee or consultant with Seller or any prior employer or client, as the case
may be.


 


(k)           Notices.  As of the Effective Date, Seller has not
received any notice (including, without limitation, any [****]*) pursuant to
[****]* by and between Seller and [****]*, as such agreement may be amended
from time to time, and to the Knowledge of Seller as of the Effective Date,
there are no facts or circumstances that could reasonably be expected to result
in any such notice.


 






* Certain information on this page has
been omitted and filed separately with the SEC. 
Confidential treatment has been requested with respect to the omitted
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(l)            Registrations;
Regulatory Matters.  All
Registrations held by Seller with respect to the CV Products are listed on Attachment
2.1(e).  The Registrations are owned
exclusively by Seller.  To Seller’s
Knowledge, all of the Registrations are valid and in full force and effect as
of the Effective Date.  The Registrations
(i) are in the name of Seller; and (ii) except as set forth in Schedule
6.6(l) of the Disclosure Schedule, constitute all licenses, permits,
approvals, qualifications, authorizations or requirements of any Governmental
Entity in the applicable Territory necessary to manufacture and sell the
Marketed Products in the applicable Territory. 
Seller has furnished Buyer with access to a complete copy of the NDA,
including all amendments and supplements thereto.  Each of the Registrations has been approved
by the FDA or other relevant Governmental Entity, as the case may be, and each
of the Registrations is in good standing with the FDA or other relevant
Governmental Entity, as the case may be. 
There is no action or proceeding by any Governmental Entity pending or,
to the Knowledge of Seller as of the Closing Date, threatened seeking the revocation
or suspension of any Registration relating to the manufacture or sale of the
Marketed Products in the applicable Territory.


 


6.7           Regulatory
Status of Marketed Products.  Except
as set forth on Schedule 6.7 of the Disclosure Schedule, there have been
no recalls, withdrawals, or market replacements of the Marketed Products in the
applicable Territory in the past [****]*.


 


6.8           Product
Net Sales.  Seller’s net sales of
each of the Marketed Products as set forth on Schedule 6.8 of the Disclosure
Schedule, for the periods specified therein, are accurate and were
determined in accordance with GAAP.


 


6.9           Violations
of Law.  The utilization of the
Assets and the conduct of the Business by Seller and its Affiliates and their
respective agents and employees do not violate any applicable law, governmental
specification, authorization or requirement or any decree, judgment, order or
similar restriction binding on the Seller or any of its Affiliates in any
material respect.  Seller has not
received notice of any Governmental Entity investigation, claim or proceeding
concerning compliance matters relating to the CV Products or the Business, or
the business practices of Seller or any of its Affiliates or any of their
respective agents or employees, including without limitation business practices
related to the pricing, promotion and manufacturing of the Marketed Products.


 


6.10         Litigation.  Neither the Assets nor the Business is the
subject of any outstanding judgment, order, writ, injunction or decree of any
court, arbitrator or administrative or Governmental Entity limiting,
restricting or affecting the Assets or the Business in any material
aspect.  Except as set forth on Schedule
6.10 of the Disclosure Schedule, there are no claims, suits, proceedings
pending or, to the Knowledge of Seller, threatened in writing against Seller or
any of its Affiliates or any of their respective agents or employees with
respect to the Assets, Business or transactions contemplated in this Agreement.


 


6.11         Employees.  Except as set forth in Schedule 6.11 of
the Disclosure Schedule, the Business Employees listed in Attachment 5.1(a) are
all the employees of Seller whose efforts and responsibilities are material to
the Business.  As of the Effective Date,
to the Knowledge of Seller, no Business Employee and no group of Business Employees
has any plans to terminate his or her employment with Seller.  To the Knowledge of Seller, Seller and its
Affiliates have complied with all laws relating to the employment of labor,
including provisions thereof relating to wages, hours, equal opportunity,
collective bargaining and the payment of social security and 


 






* Certain information on this page has been omitted and filed
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other taxes. 
Seller and its Affiliates have no material labor relations problem
pending relating to the Business Employees and their labor relations relating
to the Business Employees are satisfactory. 
There are no workers’ compensation claims pending against Seller or its
Affiliates relating to a Business Employee nor is Seller or its Affiliates
aware of any facts that would give rise to such a claim.  To the Knowledge of Seller, no Business
Employee is subject to any secrecy or non-competition agreement or any other
agreement or restriction of any kind that would impede in any way the ability
of such employee to carry out fully all activities of such employee in
furtherance of the Business.  With
respect to each Employee Benefit Plan (i) Seller and its Affiliates have
complied and are now in compliance with all laws and regulations applicable to
such Employee Benefit Plans and (ii) each Employee Benefit Plan has been
administered in all material respects in accordance with its terms.  Attachment 5.1(a) lists, as of
the date set forth on such attachment, each Business Employee and the position,
title, remuneration (including any scheduled salary or remuneration increases),
date of employment and accrued vacation pay of each such Business Employee.


 


6.12         Taxes.  As of the Effective Date, there are no, and,
at the Closing, there will not be, any liens for Taxes accrued upon the
Assets.  Any and all Taxes related to the
Assets or the Business, to the extent payable prior to the Closing, have been
or will be paid by Seller prior to the Closing. 
No jurisdiction (whether within or without the United States) in which
the Seller or any Affiliate of Seller has not filed a specific Tax Return with
respect to the Assets or the Business has asserted that the Seller or such
Affiliate is required to file such Tax Return in such jurisdiction.  Seller and each Affiliate of Seller has
complied (and until the Closing Date will comply) with all applicable laws,
rules, and regulations relating to the payment and withholding of Taxes
relating to the Assets or the Business (including withholding and reporting
requirements under Code §§3401 through 3406, 6041 and 6049 and similar
provisions under any other laws) and has, within the time and in the manner
prescribed by law, withheld from employee wages and paid over to the proper
governmental authorities all required amounts.


 


6.13         Customers
and Suppliers.  Schedule 6.13 of
the Disclosure Schedule lists the [****]* largest customers and suppliers
of Seller relating to each of the Marketed Products for the fiscal years ended December 31,
2006 and December 31, 2007 and sets forth opposite the name of each such
customer or supplier the approximate percentage of gross sales attributable
from such customers or cash payments attributable to such suppliers, and unit
sales for each such customer, for each such period.  Since December 31, 2006, no customer or
supplier listed on Schedule 6.13 of the Disclosure Schedule has advised
in writing that it will stop or materially decrease the rate of business done
with Seller except for changes in the ordinary course of Seller’s business.


 


6.14         Inventory;
Raw Materials and WIP.  The Product
Inventory, Raw Materials and WIP relating to the Marketed Products consist of
items of a quality and quantity usable and, with respect to finished goods
only, salable at Seller’s normal profit levels, in each case, in the ordinary
course of the business.  Seller’s
inventory of finished goods generated by the Business is not slow-moving as
determined in accordance with past practices, obsolete or damaged and is 


 






* Certain
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with respect to the omitted portions.


 


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merchantable
and fit for its particular use.  Seller
has on hand or has ordered and expects timely delivery of such quantities of
Raw Materials and has on hand such quantities of WIP and Product Inventory as
are reasonably required to timely fill current orders on hand with respect to
the Marketed Products which require delivery within [****]* and to maintain the
manufacture and shipment of products at its normal level of operations. Schedule
6.14(a) of the Disclosure Schedule contains a materially complete and
accurate summary of the Product Inventory, Raw Materials and WIP relating to
each of the Marketed Products as of December 31, 2007.  Since January 1, 2007, sales of the
Marketed Products by Seller to its distributors, licensees and wholesalers were
made consistent with past practices and were not the result of any special or
extraordinary sales efforts or promotions by Seller or such distributors,
licensees and wholesalers.  The level of
inventory of the Marketed Products held by Seller’s distributors, licensees and
wholesalers is consistent with practice in effect during calendar year 2007
and, on the Closing Date, will not exceed a level that would be reasonably
expected to be sold in the ordinary course of business, consistent with past
practice, during calendar year 2007, within [****]*thereof.  Seller has no reason to believe that such
inventory will be subject to returns, discounts or charge-backs that, in the
aggregate, are materially worse than those experienced during calendar year
2007.  Schedule 6.14(b) of the
Disclosure Schedule lists all of the Packaging Inventory owned by Seller as
of the Effective Date.


 


6.15         Clinical Trials.


 


(a)           Schedule
6.15(a) of the Disclosure Schedule is an accurate and complete list of
all Clinical Trials initiated by Seller prior to the Effective Date.  To Seller’s Knowledge, the Clinical Trials
were conducted in material compliance with Good Clinical Practice, the
reporting of adverse events, the filing of reports and security promulgated by
the FDA and similar regulations promulgated by other Governmental Entities as
applicable to such trials.  For the
purposes of this Section 6.15, “Good Clinical Practice”
means current good clinical practice pursuant to the FD&C Act and the
relevant U.S. regulations in Title 21 of the U.S. Code of Federal Regulations
(including Parts 11, 50, 54, 56, 312, 314 and 601).


 


(b)           Other
than as disclosed on Schedule 6.15(b) of the Disclosure Schedule,
during the Clinical Trials, there have been no deaths or serious adverse
events.


 


(c)           Seller
has not received any written notices or other written correspondence from the
FDA or any other Governmental Entity requiring the termination or suspension of
any Clinical Trials.


 


6.16         Absence
of Change.  Except as disclosed in Schedule
6.16 of the Disclosure Schedule, except for the execution and delivery of
this Agreement and the transactions to take place pursuant hereto on or prior to
the Closing Date, since September 30, 2007 there has not been any Material
Adverse Change, or any event or development which, individually or together
with other such events, could reasonably be expected to result in a Material
Adverse Change.  Without limiting the
foregoing, except as disclosed in Schedule 6.16 of the Disclosure Schedule,
there has not occurred, between September 30, 2007 and the date hereof,
any physical damage, destruction or other casualty loss (whether or not covered
by insurance) affecting any of the 


 






* Certain information on this page has been omitted and filed
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assets of Seller or its Affiliates used or
held for use in the conduct of the Business in an aggregate amount [****]*.


 


6.17         No
Undisclosed Liabilities.  There are
no Liabilities against, relating to or affecting the Business or any of the
Assets, other than Liabilities (i) incurred in the ordinary course of
business consistent with past practice, (ii) under the Assumed Contracts,
or (iii) which, individually or in the aggregate, are not material to the
condition of the Business.


 


6.18         Sufficiency.  The Assets and Buyer’s rights under this
Agreement constitute all of the material assets that are necessary for Buyer to
operate the Business as of and after the Closing Date in substantially the same
manner as the Business was operated by Seller (and Seller’s Affiliates) on the
Effective Date.


 


6.19         Brokers
and Finders.  Except as set forth in Schedule
6.19 of the Disclosure Schedule, Seller has not employed any broker or
finder or incurred any Liability for any brokerage fee, commission or finder’s
fee in connection with the transactions contemplated by this Agreement.


 


6.20         No
Implied Warranty.  THE
REPRESENTATIONS AND WARRANTIES GIVEN HEREIN BY SELLER ARE IN LIEU OF ANY
IMPLIED WARRANTIES WHICH MAY OTHERWISE BE APPLICABLE BECAUSE OF THE
PROVISIONS OF THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATUTE, INCLUDING,
WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.  Seller makes no
representation or warranty with respect to (i) any forecasts, projections,
estimates or budgets delivered or made available to Buyer of future revenues,
future results of operations (or any component thereof), future cash flows or
future financial condition (or any component thereof) of the Business or (ii) any
other information or documents made available to Buyer or its counsel,
accountants or advisors with respect to the Business, except as expressly set
forth in this Agreement or the exhibits hereto; provided, that Seller
does represent and warrant that it has neither intentionally provided or made
available to Buyer any untrue information, nor intentionally omitted any
material fact or information regarding the Assets, the Product or the Business
or any of the other matters dealt with in this Article 6 relating
to Seller or the transactions contemplated by this Agreement.


 


ARTICLE 7




REPRESENTATIONS
AND WARRANTIES OF BUYER


 


7.1           Organization
and Authority.  Buyer is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware.  Buyer has
full corporate power and authority to execute and deliver this Agreement and
such other instruments, agreements and transactions as may be contemplated
hereunder, and to perform its obligations hereunder and thereunder.  All corporate acts and other proceedings
required to be taken by or on 


 






* Certain information on this page has been
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Confidential treatment has been requested with respect to the omitted
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the part of Buyer to authorize Buyer to
execute, deliver and perform this Agreement and such other instruments,
agreements and transactions as may be contemplated hereunder, have been duly
and properly taken, and no further action on the part of Buyer or its
stockholders is necessary.  This
Agreement has been duly executed and delivered by Buyer and constitutes the
legal, valid and binding obligation of Buyer enforceable in accordance with its
terms, except as such enforceability may be subject to or limited by (i) applicable
bankruptcy, reorganization, insolvency, moratorium and similar laws affecting
the enforcement of creditors’ rights generally and (ii) the rules governing
the availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in
a proceeding in law or equity, regardless of whether considered in a proceeding
in law or equity.


 


7.2           No
Conflict or Violation.  The execution
and delivery by Buyer of this Agreement and such other instruments, agreements
and transactions as may be contemplated hereunder and the consummation by Buyer
of the transactions contemplated hereby and thereunder will not (i) violate
any law, statute, rule or regulation or judgment, order, writ, injunction
or decree of any Governmental Entity applicable to Buyer, or (ii) materially
conflict with, result in any material breach of, or constitute a material
default (or an event which with notice or lapse of time or both would become a
material default) under the Certificate of Incorporation or bylaws of Buyer or
any agreement to which Buyer is a party, or (iii) materially interfere
with Buyer’s performance of its obligations hereunder.


 


7.3           Consents
and Approvals.  Except as set forth
in Schedule 7.3, no notice to, declaration, filing or registration with,
or authorization, consent or approval of, or permit from, any Governmental
Entity, or any other person or entity, is required to be made or obtained by
Buyer in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, except
with respect to the HSR Filings and except for declarations, filings,
registrations, authorizations, consents, approvals or permits which if not
obtained or made have not had and would not reasonably be expected to have
individually or in the aggregate a material adverse effect on Buyer or
materially interfere with Buyer’s performance of its obligations hereunder.


 


7.4           Cash
Resources.  Buyer has, prior to the
execution of this Agreement, delivered to Seller, true and complete copies of
written commitments of third parties to provide Buyer with the financing (in
the form of both equity and debt) required
for Buyer’s acquisition of the Business hereunder.  Subject to the funding of the funds set forth
in the written commitments, in each case, in accordance with and subject to
their terms and conditions, Buyer will have at Closing cash in an amount
sufficient to pay the Purchase Price at the Closing and any and all fees and
expenses relating to the transactions contemplated under this Agreement and
specifically acknowledges Seller has entered into this Agreement in reliance
upon this representation.


 


7.5           Litigation.  There are no actions, suits, proceedings or
claims pending or, to the Knowledge of Buyer, threatened in writing concerning
Buyer or any of its Affiliates with respect to the transactions contemplated in
this Agreement.


 


7.6           Brokers
and Finders.  Except as set forth in Schedule
7.6, Buyer has not employed any broker or finder or incurred any Liability
for any brokerage fee, commission or finder’s fee in connection with the
transactions contemplated by this Agreement.


 


CONFIDENTIAL TREATMENT REQUESTED


 


32

















 


7.7           Buyer
Due Diligence.  Buyer is experienced,
and/or has engaged expert advisors experienced in the evaluation and purchase
of property and assets such as the Assets contemplated hereunder.  Buyer has undertaken such investigation and
has been provided with and has evaluated such documents and information as it
has deemed necessary to permit it to make an informed and intelligent decision
with respect to the execution, delivery and performance of this Agreement.


 


ARTICLE 8




PRE-CLOSING
COVENANTS


 


8.1           Governmental
Filings.  Buyer and Seller shall
cooperate in promptly undertaking all filings required to be filed with any
Governmental Entity in connection with the transfer of Assets and other rights
under this Agreement and to cooperate with one another as reasonably necessary
to accomplish the foregoing, including, but not limited to, the filings
required of both parties pursuant to the HSR (such filings sometimes being
referred to in this Agreement as the “HSR Filings”), and the filing of
any additional information as required with respect to such HSR Filings as soon
as practicable after receipt of request therefor from the United States Federal
Trade Commission.  All  filing  fees related to the
HSR Filings shall be [****]*.


 


8.2           Conduct
of Business.  During the period on
and from the Effective Date through and including the Closing Date, Seller will
conduct the Business only in the ordinary course consistent with past
practices, unless Buyer shall otherwise agree in writing.  Without limiting the generality of the
foregoing,


 


(a)           Seller
will:


 


i.              use
commercially reasonable efforts to (i) keep available (subject to
dismissals and retirements in the ordinary course of business consistent with
past practice) the services of the Business Employees, (ii) maintain the
good will of wholesalers, customers, suppliers, lenders and other persons and
entities to whom Seller sells goods or provides services or with whom Seller
otherwise has significant business relationships in connection with the
Business, and (iii) continue all current sales, marketing and promotional
activities relating to the Business;


 


ii.             except
to the extent required by applicable law, (i) cause the Books and Records
to be maintained in the usual, regular and ordinary manner, and (ii) not
permit any material change in any pricing, investment, accounting, financial
reporting, inventory, credit, allowance or Tax practice or policy of Seller or
its Affiliates that would adversely affect the Business, the Assets or the
Assumed Liabilities;


 


iii.            comply,
in all material respects, with all laws and orders applicable to the Business
and promptly following receipt thereof give Buyer copies of any 


 






* Certain information on this page has been
omitted and filed separately with the SEC. 
Confidential treatment has been requested with respect to the omitted
portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


33

















 


notice received from any Governmental Entity or any
other person or entity alleging any violation of any such law or order;


 


iv.            work diligently and in good faith to
complete, as promptly as reasonably practicable, the application to be
submitted to the FDA to obtain the Initial FDA Approval, such application to be
in form and substance reasonably satisfactory to Buyer; provided, if
Seller completes such application prior to the Closing Date and the application
is in form and substance reasonably satisfactory to Buyer, then Seller will
promptly file such application with the FDA;


 


v.             work diligently and in good faith to [****]*
and any and all work and agreements
relating thereto and [****]* related
thereto; and


 


vi.            promptly provide to Buyer written notice of (i) any
formal action taken, or non-privileged communication made, by Seller or any
other party to the Sun Litigation in connection therewith, and (ii) Seller’s
filing of any citizen’s petition or issuance of any other response in
connection with the [****]* and,
in the case of this subclause (ii), shall not make any such filing or issue any
such response without the prior written consent of Buyer.


 


(b)           Seller
will refrain from:


 


i.              entering
into, amending, modifying, terminating (partially or completely), granting any
waiver under or giving any consent with respect to any Assumed Contract or any
Registration;


 


ii.             violating,
breaching or defaulting under, in any material respect, or taking or failing to
take any action that (with or without notice or lapse of time or both) would
constitute a material violation or breach of, or default under, any term or
provision of any Assumed Contract or any Registration;


 


iii.            waiving
any right of Seller under any Liability of or owing to Seller in connection
with the Business, other than in the ordinary course of business consistent
with past practice;


 


iv.            engaging
in any transaction with respect to the Business with any officer, director or
Affiliate of Seller, either outside the ordinary course of business consistent
with past practice or other than on an arm’s-length basis; and


 


v.             entering
into any agreement to do or engage in any of the foregoing.


 


8.3           No
Solicitation.  Seller will not (and
it will use its best efforts to assure that its officers, directors, employees,
agents and affiliates do not on its behalf) (a) take any action to solicit,
initiate, seek, or affirmatively support any inquiry, proposal or offer from,
any 


 






*
Certain information on this page has been omitted and filed separately
with the SEC.  Confidential treatment has
been requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


34

















 


corporation, partnership, person or other
entity or group (other than Buyer) relating to any acquisition of the Business
or any of the Assets, other than the marketing, sale and distribution of
Product Inventory and use of Raw Materials in the ordinary course consistent
with past practices (any such proposed transaction being a “Third Party
Acquisition”); or (b) participate in any discussions or negotiations
with, or provide any non-public information to, any corporation,
partnership, person or other entity or group (other than Buyer) relating to any
proposed Third Party Acquisition.  Seller
shall immediately terminate any such negotiations in progress as of the Effective
Date.  In no event will Seller accept or
enter into an agreement concerning any such Third Party Acquisition prior to
the termination of the Agreement pursuant to Article 12.  Notwithstanding this provision, nothing
herein shall be deemed to in any way restrict or limit the right of Seller to
engage in discussions, negotiations, furnishing of information or any other
activities relating to or in support of transactions involving the acquisition
or sale of Seller and/or any other product lines or businesses of Seller other
than the Business or the Assets, so long as this Agreement shall remain in full
force and effect and shall remain binding on the parties hereto.


 


8.4           Access.  During the period from the Effective Date and
continuing until the Closing, upon reasonable advance notice received from
Buyer and at Buyer’s expense, Seller shall (i) afford Buyer, its financing
sources and their representatives reasonable access to, during regular business
hours, or furnish Buyer, its financing sources and its representatives with
copies of, documents used solely and specifically with respect to the Assets or
the CV Products as Buyer may reasonably request, and (ii) otherwise
cooperate and assist with Buyer’s and its financing source’s investigation of
the Assets and the CV Products as Buyer may reasonably request.


 


8.5           Financing.


 


(a)           Buyer
will use best efforts to (i) enter into definitive agreements providing
for the financing of Buyer’s consummation of the transactions contemplated
hereby, containing terms substantially similar to those set forth in the
commitment letters referred to in Section 7.4, (ii) obtain and
consummate on the Closing Date the financing contemplated by such definitive
financing agreements, and (iii) ensure that Buyer’s equity investors comply
with the provisions of the equity commitment letters referred to in Section 7.4
and enforce such provisions against such equity investors to ensure the
consummation of the financing of Buyer’s consummation of the transactions
contemplated hereby.


 


(b)           [****]*.


 


8.6           Payment
of Certain Expenses.  Seller shall,
on or prior to the Closing Date, pay in full any and all fees, cost and
expenses incurred or accrued with respect to the Sun Litigation (including
attorneys’ fees) through the Closing and shall provide Buyer with evidence
reasonably satisfactory to Buyer that all such amounts have been paid.


 


8.7           Transition
Services Agreement.  Seller and Buyer
shall enter into the Transition Services Agreement on the Closing Date, in
substantially the same form and on substantially the same terms as set forth in
Exhibit F, pursuant to which Seller will provide to Buyer the
transition services requested by it, which services may include, without
limitation, regulatory, supply chain management, intellectual property and
other services.


 






* Certain information on this page has been
omitted and filed separately with the SEC. 
Confidential treatment has been requested with respect to the omitted
portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


35

















 


ARTICLE 9




CONDITIONS
TO CLOSING


 


9.1           Conditions
to Obligations of Buyer.  All
obligations of Buyer hereunder are, at the option of Buyer, subject to the
conditions precedent that (all
or any of which may be waived by Buyer, in whole or in part), at the Closing:


 


(a)           All
consents, approvals and actions of, filings with and notices to any
Governmental Entity necessary to permit Buyer and Seller to perform their
obligations under this Agreement and to consummate the transactions contemplated
hereby (a) shall have been duly obtained, made or given, (b) shall be
in form and substance reasonably satisfactory to Buyer, (c) shall not be
subject to the satisfaction of any condition that has not been satisfied or
waived and (d) shall be in full force and effect, and all terminations or
expirations of waiting periods imposed by any Governmental Entity necessary for
the consummation of the transactions contemplated by this Agreement, including
under the HSR, shall have occurred.


 


(b)           There
shall not be in effect on the Closing Date any order or law restraining,
enjoining or otherwise prohibiting or making illegal the consummation of any of
the transactions contemplated by this Agreement or which could reasonably be
expected to otherwise result in a Material Adverse Effect and there shall not
be pending or threatened on the Closing Date any action or proceeding in,
before or by any Governmental Entity which could reasonably be expected to
result in the issuance of any such order or the enactment, promulgation or
deemed applicability to Buyer or the transactions contemplated by this
Agreement of any such law.


 


(c)           Seller
shall have furnished to Buyer all deliverables set forth in Section 4.2(a),
and shall have performed and complied with, in all material respects, each
agreement, covenant and obligation required by this Agreement to be so
performed or complied with by Seller at or before Closing.


 


(d)           Each
of the representations and warranties of Seller set forth in this Agreement
that is qualified by materiality shall be true and correct in all respects, and
each of such representations and warranties that is not so qualified shall be
true and correct in all material respects, in each case, as of the Closing Date
as though made on and as of the Closing Date or, in the case of representations
and warranties made as of a specified date earlier than the Closing Date, on
and as of such earlier date.


 


(e)           The
level of inventory of the Marketed Products held by Seller’s distributors,
licensees and wholesalers on the Closing Date shall not exceed a level that
would be reasonably expected to be sold in the ordinary course of business,
consistent with past practice during the calendar year 2007, [****]*.


 






* Certain information on this page has
been omitted and filed separately with the SEC. 
Confidential treatment has been requested with respect to the omitted
portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


36

















 


(f)            If Buyer shall have complied in all respects
with its obligations under Section 8.5(a), and Buyer shall have taken all material action
that is within its reasonable control and required
by it pursuant to the terms of the written commitments of third parties
referred to in Section 7.4 and the definitive agreements entered
into in connection therewith, then it shall be a condition to Buyer’s
obligations under this Agreement that it shall have obtained financing on terms
substantially similar to those set forth in the commitment letters referred to
in Section 7.4 and in an amount sufficient to pay the Initial
Purchase Price at Closing.


 


9.2           Conditions
to Obligations of Seller.  All
obligations of Seller hereunder are, at the option of Seller, subject to the
conditions precedent that (all
or any of which may be waived by Seller, in whole or in part), at the Closing:


 


(a)           All
consents, approvals and actions of, filings with and notices to any
Governmental Entity necessary to permit Buyer and Seller to perform their
obligations under this Agreement and to consummate the transactions
contemplated hereby (a) shall have been duly obtained, made or given, (b) shall
be in form and substance reasonably satisfactory to Seller, (c) shall not
be subject to the satisfaction of any condition that has not been satisfied or
waived and (d) shall be in full force and effect, and all terminations or
expirations of waiting periods imposed by any Governmental Entity necessary for
the consummation of the transactions contemplated by this Agreement, including
under the HSR, shall have occurred.


 


(b)           There
shall not be in effect on the Closing Date any order or law restraining,
enjoining or otherwise prohibiting or making illegal the consummation of any of
the transactions contemplated by this Agreement and there shall not be pending
or threatened on the Closing Date any action or proceeding in, before or by any
Governmental Entity which could reasonably be expected to result in the
issuance of any such order or the enactment, promulgation or deemed
applicability to Seller or the transactions contemplated by this Agreement of
any such law.


 


(c)           Buyer
shall have furnished to Seller all deliverables set forth in subsections
(i)-(iv),  (vi),  (viii) and (ix) of Section 4.2(b),
and shall have performed and complied with, in all material respects, each
agreement, covenant and obligation required by this Agreement to be so
performed or complied with by Buyer at or before Closing.


 


(d)           Each
of the representations and warranties of Buyer set forth in this Agreement that
is qualified by materiality shall be true and correct in all respects, and each
of such representations and warranties that is not so qualified shall be true
and correct in all material respects, in each case, as of the Closing Date as
though made on and as of the Closing Date or, in the case of representations
and warranties made as of a specified date earlier than the Closing Date, on
and as of such earlier date.


 


CONFIDENTIAL TREATMENT REQUESTED


 


37

















 


ARTICLE 10




POST-CLOSING COVENANTS


 


10.1         Further
Assurances.


 


(a)           At
any time or from time to time after Closing, at Buyer’s reasonable request and
without further consideration, Seller shall execute and deliver to Buyer such
other instruments of sale, transfer, conveyance, assignment and confirmation,
provide such materials and information and take such other actions as Buyer may
reasonably deem necessary or desirable in order more effectively to transfer,
convey and assign to Buyer, and to confirm Buyer’s title to, all of the Assets,
and, to the full extent permitted by law, to put Buyer in actual possession and
operating control of the Business and the Assets and to assist Buyer in
exercising all rights with respect thereto, and otherwise to cause Seller to
fulfill its obligations under this Agreement. 
Without limiting the foregoing, (i) if, on or prior to the [****]*
of the Closing Date, either Buyer or Seller becomes aware that an asset or
property of Seller or its Affiliates that was used solely or primarily in, or
that was necessary for the conduct of, the Business on the Effective Date, was
not sold, transferred, assigned, conveyed and delivered to Buyer on the Closing
Date, then (A) if such asset or property was used solely in the Business
on the Effective Date, Seller shall promptly sell, transfer, assign, convey and
deliver such asset or property to Buyer, or (B) if such asset or property
was used primarily in, or was otherwise necessary for the conduct of, the
Business on the Effective Date, Seller shall either promptly sell, transfer, assign,
convey and deliver such asset or property to Buyer, or make such asset or
property available to Seller under a perpetual, paid-up, irrevocable,
royalty-free, non-exclusive license, with the right to sublicense, in each case
without any additional consideration being due to Seller, and (ii) in the
event that any Affiliate of Seller has any right, title or interest in any
Asset (or any other asset used in the Business that would otherwise be an Asset
if owned by Seller), then Seller shall cause such Affiliate to transfer and
assign all such right, title and interest to Buyer.


 


(b)           Effective
on the Closing Date, Seller hereby constitutes and appoints Buyer the true and
lawful attorney of Seller, with full power of substitution, in the name of
Seller or Buyer, but on behalf of and for the benefit of Buyer: (i) to
demand and receive from time to time any and all Assets and to make
endorsements and give receipts and releases for and in respect of the same and
any part thereof; (ii) to institute, prosecute, compromise and settle any
and all actions or proceedings that Buyer may deem proper in order to collect,
assert or enforce any claim, right or title of any kind in or to the Assets; (iii) to
defend or compromise any or all actions or proceedings in respect of any of the
Assets; and (iv) to do all such acts and things in relation to the matters
set forth in the preceding clauses (i) through (iii) as Buyer shall
deem desirable.  Seller hereby
acknowledges that the appointment hereby made and the powers hereby granted are
coupled with an interest and are not and shall not be revocable by it in any
manner or for any reason.  Seller shall
deliver to Buyer at Closing an acknowledged power of attorney to the foregoing
effect executed by Seller.  Buyer shall
indemnify and hold harmless Seller from any and all Losses caused by or arising
out of any breach of law by Buyer in its exercise of such power of attorney.


 


(c)           Seller
agrees to cooperate with Buyer in enforcing any rights Seller may have,
contractual or otherwise, which Seller may retain after the Closing Date and
which may relate to the Assets and/or the Business; provided, however,
such enforcement must include a claim for damages attributable to post-Closing
periods.  Seller agrees to appoint Buyer
as its 


 






* Certain information on
this page has been omitted and filed separately with the SEC.  Confidential treatment has been requested
with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


38

















 


agent, with full
authority to enforce such rights, and agrees to join in any litigation to the
extent deemed necessary by Buyer to protect Buyer’s interest in the Assets
and/or the Business.  Buyer shall have
the right to sue for and recover past, present and future damages resulting
from Seller’s retained rights; provided, however, such suit must
include a claim for damages attributable to post-Closing periods.  To the extent such damages can be attributed
to damages occurring before the Closing Date, Buyer shall, to the extent
recovered by Buyer, pay to Seller the portion of any total recovery minus costs
of litigation attributable to such damages. 
Seller shall make available to Buyer any of its employees, officers, and
directors as requested by Buyer during the course of litigation.  Seller shall promptly cooperate with Buyer at
Buyer’s request in gathering information and in responding to any discovery or
other obligation of Buyer in preparation for or during the conduct of
litigation.  Subject to the allocation of
costs of litigation stated above, Buyer shall, with respect to the services
provided by Seller on Buyer’s request under this Section 10.1(c),
pay Seller’s expenses and indemnify Seller consistent with the provisions of Section 4
and Section 5 of the Litigation Cooperation Agreement.  Seller shall promptly deliver copies of
all proprietary, inventions, confidentiality and similar agreements 
between Seller and any Business Employee, as well as such other agreements
that Buyer may reasonably request from time to time for purposes of
exercising its rights under this Section 10.1(c), including,
without limitation, agreements with past or present employees, agents or
representatives.


 


10.2         Transfer
of Registrations; Interim Responsibility.


 


(a)           Promptly
after the Closing Date, Seller shall (i) send letters to the FDA and other
Governmental Entities indicating that the Registrations are transferred to
Buyer and that Buyer is the new owner of the Registrations as of the Closing
Date and (ii) provide to Buyer a copy of said letters.


 


(b)           Promptly
after the Closing Date, the parties will cooperate in transferring the
Registrations to Buyer.  The target date
for the transfer shall be agreed upon by the parties, but shall not be later
than [****]* from the Closing Date.  Prior to the Closing, the parties will agree
upon procedures to ensure a smooth transition from Seller to Buyer of all of
the activities required to be undertaken by the Registration(s) holder,
including adverse experience reporting, quarterly and annual reports to FDA,
handling and tracking of complaints, sample tracking, and communication with
health care professionals and customers which shall be specified in the
Transition Services Agreement or an amendment thereto.  Within [****]* after the Closing Date, Seller
will forward to Buyer a complete copy of the Registrations for the CV Products,
as well as copies of all correspondence with, and periodic and other reports
(including adverse event reports and the underlying data) to, regulatory authorities
in the applicable Territory.  Seller will
cooperate with Buyer to ensure a smooth transition of the activities
contemplated hereby, and in obtaining the cooperation of Seller and its
distributors and licensees of the CV Products with the transfer of adverse
experience reporting obligations from Seller to Buyer.


 






* Certain information on
this page has been omitted and filed separately with the SEC.  Confidential treatment has been requested
with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


39

















 


(c)           Until
the Registrations have been transferred to Buyer, Seller shall be responsible
for maintaining them, at Seller’s sole cost and expense.  After such transfer, Buyer will assume all responsibility
for the Registrations, at Buyer’s sole cost and expense.  Each party shall cooperate with the other in
making and maintaining all regulatory filings that may be necessary in
connection with the execution, delivery and performance of this Agreement.


 


10.3         Communication
With Agencies.  Until the
Registrations are transferred to Buyer, Seller shall have responsibility for
all communications with the FDA relating to the CV Products, and Seller will
promptly provide Buyer with copies of all communications from the FDA with
respect to the CV Products and/or the manufacture thereof, and Seller shall
consult with Buyer and reflect the Buyer’s reasonable requests regarding all
communications to the FDA with respect to the CV Products and/or the manufacture
thereof, prior to making such communication with the FDA.  After such transfer has been completed, Buyer
shall have responsibility for all such communication it sends to or receives
from any Governmental Entity in the applicable Territory concerning the CV
Products.


 


10.4         Adverse
Experience Reporting.


 


(a)           Until
the Registrations are transferred to Buyer, Seller shall be responsible for the
adverse experience and safety reporting for the CV Products in compliance with
the requirements of the FD&C Act and the regulations promulgated
thereunder.  After the Registrations are
transferred to Buyer, Buyer shall assume such responsibility.  Buyer and Seller agree to meet promptly after
the Closing Date to determine mutually agreeable reporting procedures to communicate
the information as required under this Section 10.4.


 


(b)           On
or before the Closing Date, Seller shall provide Buyer with a summary of the
information relating to the investigation and reporting of adverse experiences
regarding the CV Products and all appropriate information that is relevant to
the safe use of the CV Products as of the Closing Date.


 


(c)           After
the Closing Date and until the Registrations are transferred to Buyer, Buyer
agrees to promptly submit to Seller all adverse drug experience information and
customer complaints brought to the attention of Buyer with respect to the CV
Products, as well as any material events and matters concerning or affecting
the safety or efficacy of the CV Products. 
Such information or customer complaints shall be forwarded to Seller to
the attention of:


 


CONFIDENTIAL TREATMENT REQUESTED


 


40














 


	
  Name:

  	
  [****]*

  
	
  Title:

  	
  Medical Director, Drug Safety

  
	
  Address:

  	
  1400 Seaport Blvd

  
	
   

  	
  Redwood City, CA 94063

  
	
  Facsimile:

  	
  650-454-1403

  
	
  Drug safety mailbox:

  	
  drugsafety@pdl.com

  



 


(d)           After
the Registrations have been transferred to Buyer, Seller shall assist Buyer
with the provision of data relating to adverse experiences for the CV Products
after such transfer to Buyer. 
Additionally, after the transfer of the Registrations to Buyer, Seller
shall provide Buyer with all adverse drug experience information and customer
complaints brought to the attention of Seller with respect to the CV Products,
as well as any material events and matters concerning or affecting the safety
or efficacy of the CV Products, via facsimile to the attention of:


 


	
  Name:

  	
  [****]*

  
	
  Title:

  	
  Director of Regulatory Affairs

  
	
  Address:

  	
  7 East Frederick Place

  
	
   

  	
  Cedar Knolls, NJ 07927

  
	
  E-mail:

  	
  [****]*

  



 


10.5         Medical
Inquiries.  Promptly after the
Registrations have been transferred to Buyer, Buyer shall assume all
responsibility for all correspondence and communication with physicians and
other health care professionals and customers in the applicable Territory
relating to the CV Products.  After the
Closing Date, Buyer and Seller shall work together towards an orderly
transition of the responsibility for all correspondence and communication with
health care professionals and customers in the applicable Territory relating to
the CV Products.  Seller shall continue
to be responsible for such correspondence and communication under the direction
of Buyer until the Registrations have been transferred to Buyer.  Buyer shall keep such records and make such
reports as shall be reasonably necessary to document such communications in
compliance with all applicable regulatory requirements.  After transfer of responsibility to Buyer
pursuant to this Article 10, Seller shall, except in the case of
medical emergency, refer all questions relating to the CV Products raised by
health care professionals and customers to Buyer for its response.


 


10.6         Non-Use
of Trademarks.  Buyer covenants that,
except as expressly permitted in this Agreement, Buyer shall not use in any
manner any trademark of Seller (other than the Trademarks listed in Attachment
2.1(c) and transferred to Buyer pursuant to this Agreement).


 


10.7         Documents.  Seller will permit Buyer, its financing
sources and their duly authorized representatives access during normal business
hours (upon written notice to Seller) to contracts and other data relating to
the Business, the Assets conveyed and assumed at the Closing to the extent
copies of such items were not delivered to Buyer.  Buyer will permit Seller and its 


 






* Certain information on this page has
been omitted and filed separately with the SEC. 
Confidential treatment has been requested with respect to the omitted
portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


41

















 


duly authorized representatives access during
normal business hours (upon written notice to Buyer) to all contracts and other
data relating to the Assets conveyed and assumed at the Closing to the extent
originals of such items were delivered to Buyer.  Such access by Buyer, Seller or such other
person, as the case may be, shall be allowed until the later to occur of the
expiration of the statute of limitations for the imposition of Tax with respect
to the years to which such data pertain, or seven years from the year to which
such data pertain, provided that such access shall not unduly interfere with
the business and affairs of the party or applicable Affiliate permitting such
access.  Buyer will cooperate with
Seller, and Seller will cooperate with Buyer, with respect to any Tax
examinations, audits, contests or other Tax proceedings, relating to the
Business.  The party requesting
assistance hereunder shall reimburse the other party for reasonable expenses
incurred in providing such assistance.


 


10.8         Governmental
Inspections.  For a period of [****]*
following the Closing Date each party shall advise the other party of any
governmental visits to, or written or oral inquiries about, any facilities (to
the extent such visit relates to, or the results thereof could affect the
manufacture or supply of, the CV Products) or procedures for the manufacture,
storage or handling of the CV Products, or the marketing, selling, promotion or
distribution of any of the CV Products, promptly after any such visit or
inquiry (or in advance, for any scheduled visits).  During this period, each party shall promptly
furnish to the other party any report or correspondence issued by or provided
to a Governmental Entity in connection with such visit or inquiry, purged only
of Confidential Information of such party wholly unrelated to the other party’s
activities under this Agreement and any information that is unrelated to the CV
Products.  Each party shall permit the
relevant Governmental Entity to inspect its facilities in connection with the
activities contemplated by this Agreement.


 


10.9         Intellectual
Property Maintenance.  Following the
Closing, Buyer will have the sole right (but not the obligation) to file,
prosecute and maintain, at its sole cost and expense any patent applications,
Patents, Trademark Registrations and Domain Names that cover or relate to the
CV Products.  Following the Closing,
Buyer shall be responsible for recording the assignment of the assigned
Patents, Domain Names and Trademark Registrations with the U.S. Patent and
Trademark Office and other authorities or entities as it deems appropriate, at
its own cost and expense (including any attorney fees and filing fees).  Seller shall fully cooperate with Buyer, as
and to the extent reasonably requested by Buyer after the Closing Date, at
Buyer’s sole cost and expense, to secure any further registration of, or to enforce
or defend, any Patents, Trademarks, Registrations, Domain Names or other
intellectual property rights related to the CV Products for the benefit of
Buyer and to execute assignments and any other documents to effect the transfer
of such Patents, Trademarks, Registrations, Domain Names or other intellectual
property rights related to the CV Products to Buyer.


 


10.10       Insurance.  As of the Closing Date, the coverage under
all insurance policies related to the Assets and the Business shall continue in
force only for the benefit of Seller, and not for the benefit of Buyer, the
Assets or the Business.  As of the
Closing Date, Buyer agrees to 


 






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arrange for its own insurance policies with
respect to the Assets and Buyer’s conduct of the Business.


 


10.11       Federal
Supply Schedule.  Buyer shall within five
(5) business days after the Closing Date, add the Marketed Products to its
Federal Supply Schedule.


 


10.12       Promotion,
Marketing and Labeling.  Promptly
after the Registrations have been transferred to Buyer and subject to
applicable regulatory approvals, all Buyer advertising and promotional
materials for the Marketed Products shall identify Buyer as the marketer of the
Marketed Products in the applicable Territory, in such form as Buyer shall
determine.  Promptly after the
Registrations have been transferred to Buyer, Buyer shall make such changes in
the package insert, Marketed Products labeling and packaging as may be required
to reflect Buyer as the marketer of the Marketed Products in the applicable
Territory, including making all required FDA and any other regulatory filings
in connection therewith.  Promptly after
the Registrations have been transferred to Buyer, Seller shall file with the
FDA a notice that Buyer is the marketer and distributor of the Marketed
Products in the applicable Territory.  To
the extent that the FDA requests additional information or meetings regarding
Buyer’s responsibilities as marketer and distributor of the Marketed Products
in the applicable Territory, Buyer shall respond to the FDA at its own expense
and through its own personnel.  Seller is
not required to change the Marketed Products’ labeling or package insert, or
packaging for the Drug Products or the Packaged Products.  With respect to the Product Inventory
purchased by Buyer hereunder, Buyer shall be permitted (i) until [****]*
in the case of the [****]* other than [****]*, (ii) until [****]* in the
case of [****]*, and (iii) until [****]* in the case of the [****]* to
sell Marketed Products from the Product Inventory as labeled and packaged prior
to the Closing Date, without regard to whether such Marketed Products
references Seller or includes any intellectual property rights Seller has in
Trademarks that may be included on the labels and packaging but not conveyed to
Buyer pursuant to this Agreement, provided that all such Product Inventory
shall be held, maintained, distributed and sold in accordance with the
Registrations and all applicable laws. 
Without the prior written approval from Seller, which approval shall not
be unreasonably withheld or delayed, Buyer shall not use or distribute any
marketing, promotional or advertising copy related to the [****]* has been
transferred to Buyer; provided, however, that nothing herein shall require
any approval from Seller for Buyer to issue invoices for, and collect
revenues from, sales of the [****]* from and after the Closing Date.


 


10.13       Payments
from Third Parties.  As soon as
reasonably practicable after the Closing Date but not more than [****]*
thereafter, Seller will provide Buyer with a list of all of the customers and
wholesalers purchasing the Marketed Products from Seller, and Seller and Buyer
shall notify those customers and wholesalers that Buyer has acquired all of
Seller’s right, title and interest in and to the marketing and sale of the
Marketed Products in the applicable Territory and all payments with respect to
the sale of the Marketed Products after the Closing Date should be paid
directly to Buyer at its designated account. 
Seller and Buyer shall notify customers and wholesalers using the third
party notification letter substantially in the form attached hereto as Exhibit J.  In the event that, on or after the Closing
Date, either party shall receive any payments 


 






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or other funds due to the other party, then
the party receiving such funds shall promptly forward such funds to the proper
party.  The parties acknowledge and agree
there is no right of offset regarding such payments and a party may not
withhold funds received from third parties for the account of the other party
in the event there is a dispute regarding any other issue under this
Agreement.  Buyer and Seller shall each
keep, and shall cause its respective Affiliates and third party sublicensees to
keep, full and accurate records and books of account containing all particulars
that may be necessary for the purpose of determining any amounts that may be
payable to the other party hereunder, and shall afford each other with access
to books and records and with audit and other rights consistent with the rights
set forth in Section 3.5 of this Agreement.


 


10.14       Product
Returns, Chargebacks and Rebates. 
Except as otherwise provided in the Transition Services Agreement, Buyer
shall assume responsibility for handling all returns of the CV Products sold by
or for Seller prior to the Closing Date in accordance with Seller’s normal
return policies and procedures.  Any
returns received directly by Seller after the Closing Date shall be forwarded
to Buyer’s designated facility for handling of the returned CV Products and
processing of customer credits.  Notwithstanding
the foregoing, [****]* shall be responsible for [****]* and [****]* shall be
financially responsible for all such chargebacks and rebates related to the CV
Products sold after the Closing Date.


 


10.15       Bulk Transfer Laws.  Buyer hereby waives compliance by Seller with
the provisions of any so-called “bulk transfer law” of any jurisdiction in
connection with the sale of the Assets to Buyer.  Seller shall indemnify and hold Buyer
harmless from, against and in respect of (and shall reimburse Buyer for) any
and all liabilities that may be asserted by third parties against Buyer as a
result of noncompliance with any such bulk transfer law.


 


10.16       Non-Competition.


 


(a)            Except
as otherwise permitted or required under this Agreement or the Transition Services
Agreement, Seller shall, from Closing until [****]* from the Closing Date,
refrain from, either alone or in conjunction with any other person or entity,
directly or indirectly through Affiliates controlled by Seller, develop, or plan to develop, any other drug
candidate or product that, directly or indirectly, reasonably could be
expected to be competitive with the Business; provided, however,
that


 


i.              any
third party that sells  drug candidates or products that, directly
or indirectly, compete with the Business, may merge with or otherwise acquire
Seller, or all or substantially all of Seller’s assets, and continue to sell
such competing drug candidates and products; and


 


ii.             such
combined entity or third party may thereafter merge with or otherwise acquire
any other third party (or all or substantially all of such third party’s
assets) that sells  drug candidates or products that, directly
or indirectly, compete with a different aspect of the Business, and continue to
sell such drug candidates and products.


 






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(b)           The
parties recognize that the laws and public policies of various states and
jurisdictions may differ as to the validity and enforceability of covenants
similar to those set forth in this Section. 
It is the intention of the parties that the provisions of this Section be
enforced to the fullest extent permissible under the laws and policies of each
jurisdiction in which enforcement may be sought, and that the unenforceability
(or the modification to conform to such laws or policies) of any provisions of
this Section shall not render unenforceable, or impair, the remainder of
the provisions of this Section. 
Accordingly, if any provision of this Section shall be determined
to be invalid or unenforceable, such invalidity or unenforceability shall be
deemed to apply only with respect to the operation of such provision in the
particular jurisdiction in which such determination is made and not with
respect to any other provision or jurisdiction.


 


(c)           The
parties acknowledge and agree that any remedy at law for any breach of the
provisions of this Section would be inadequate, and Seller hereby consents
to the granting by any court of an injunction or other equitable relief,
without the necessity of actual monetary loss being proved, in order that the breach
or threatened breach of such provisions may be effectively restrained.


 


ARTICLE 11




CONFIDENTIALITY


 


11.1         Confidentiality.  Following the Effective Date, the
Confidentiality Agreement will remain in full force and effect in accordance
with its terms, except as otherwise modified by this Agreement, and all
Confidential Information previously or hereafter disclosed from time to time in
the course of the performance of this Agreement, shall be held in confidence by
the other party pursuant to the Confidentiality Agreement, except as permitted
under this Agreement or as necessary to carry out the activities contemplated
hereby.  Notwithstanding anything to the
contrary herein, obligations of the parties under this Agreement are several
and not joint with the intention that each party be responsible for their own
actions and the actions of their respective representatives and not for actions
of any of the other parties hereto. 
Neither party shall, without the prior written consent of the other
party, use the Confidential Information of the other party for any purpose
other than performing its obligations or exercising its rights under this
Agreement.  Each party shall disclose the
Confidential Information of the other party only to its directors, employees,
consultants, vendors, financing sources and clinicians under written agreements
of confidentiality at least as restrictive as those set forth in this
Agreement, who have a need to know such information in connection with such
party performing its obligations or exercising its rights under this Agreement;
provided, however, Buyer shall be severally responsible for any
breach of this Agreement or the confidentiality agreement between Buyer and
such third party or its representatives, and Buyer agrees, at its sole expense,
to take all reasonable measures to restrain such third parties and its
representatives from prohibited or unauthorized disclosure or use of the
Confidential Information. 
Notwithstanding the foregoing, no provision of this Agreement shall be
construed so as to preclude such disclosure of Confidential Information as may
be inherent in or reasonably necessary to the securing from any Governmental
Entity of any necessary approval or license related to the CV Products, to the
obtaining of patents.  Following the
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and in the Confidentiality Agreement will not
apply to Buyer’s use of documents and information concerning the Business
(except to the extent that such documents and information contain information
related to Seller’s other business or the Excluded Assets), the Assets or the
Assumed Liabilities, and (ii) any information related to the Business
(excluding information related to Seller’s other business or the Excluded
Assets), the Assets or the Assumed Liabilities shall be considered Confidential
Information of Buyer for the purposes of this Agreement and the Confidentiality
Agreement.  Upon the termination of this
Agreement, and upon the written request of the other party, each party shall
promptly return to the other party all copies and embodiments of the
Confidential Information of such other party, subject to the retention by each
party’s legal department of one complete copy for archival purposes.


 


11.2         Publicity.  No party to this Agreement shall originate
any publicity, news release or other public announcement, written or oral,
whether relating to this Agreement or the existence of any arrangement between
the parties, without the prior written consent of the other party whether named
in such publicity, news release or other public announcement or not, except
where such publicity, news release or other public announcement is required by
law; provided, that in such event, the party issuing same shall still be
required to consult with the other party whether named in such publicity, news
release or public announcement or not, a reasonable time prior to its release
to allow the other party to comment thereon and, after its release, shall
provide the other party with a copy thereof. 
If either party, based on the advice of its counsel, determines that
this Agreement, or any of the other documents executed in connection herewith,
must be filed with the SEC, then such party, prior to making any such filing,
shall provide the other party and its counsel with a redacted version of this
Agreement (or any other related documents) which it intends to file, and will
give due consideration to any comments provided by the other party or its
counsel and use reasonable efforts to ensure the confidential treatment by the
SEC of those sections specified by the other party or its counsel.  Notwithstanding the foregoing, Buyer’s
financing sources or other professional advisors may publish “tombstones” or
other customary announcements relating to the purchase financing and the
transactions contemplated hereby.


 


ARTICLE 12




TERM
AND TERMINATION


 


12.1         Termination.


 


This Agreement may be terminated prior to the Closing:


 


(a)           By
Buyer, upon written notice (A) at any time prior to Closing, if Seller
shall have failed to comply in any material respect with any of its obligations
in this Agreement, and such failure shall be continuing, or if any one or more
of the representations or warranties of Seller contained in this Agreement (i) that
is qualified by materiality shall prove to be inaccurate in any respect or (ii) that
is not so qualified shall prove to be inaccurate in any material respect; provided,
however, that Buyer shall give Seller thirty (30) days to cure any such
failure to so comply or to remedy any such inaccuracy under this Agreement; or (B) at
Closing, if any of the conditions precedent to the performance of Buyer’s
obligations at the Closing under Article 9 shall not have been
fulfilled (unless the failure results primarily from Buyer’s breach of any
representation, warranty, covenant or agreement contained this Agreement); provided,
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that in the event that Buyer shall desire to terminate
this Agreement as a result of the failure of the accuracy of a representation
or warranty at the Closing, Buyer shall be required to give Seller prior notice
that it intends to terminate this Agreement as a result of such inaccuracy, and
Seller shall have a reasonable period of time, not to exceed thirty (30) days,
to cure such inaccuracies.


 


(b)           By
Seller, upon written notice (A) at any time prior to Closing, if Buyer
shall have failed to comply in any material respect with any of its obligations
in this Agreement and such failure shall be continuing, or if any one or more
of the representations or warranties of Buyer contained in this Agreement (i) that
is qualified by materiality shall prove to be inaccurate in any respect or (ii) that
is not so qualified shall prove to be inaccurate in any material respect; provided,
however, that Seller shall give Buyer thirty (30) days to cure any such
failure to so comply or any such inaccuracy under this Agreement; or (B) at
the Closing, if any of the conditions precedent to the performance of its
obligations at the Closing under Article 9 shall not have been
fulfilled (unless the failure results primarily from Seller’s breach of any
representation, warranty, covenant or agreement contained this Agreement); provided,
however, that in the event that Seller shall desire to terminate this
Agreement as a result of the failure of the accuracy in any material respect of
a representation or warranty at the Closing, Seller shall be required to give
Buyer prior notice that it intends to terminate this Agreement as a result of
such inaccuracy and Buyer shall have a reasonable period of time, not to exceed
thirty (30) days, to cure such inaccuracies.


 


(c)           By
either party if the Closing shall not have occurred on or before March 31,
2008, provided, that such date shall be extended to June 30, 2008
in the event the waiting period under the HSR is extended, restarted or renewed
beyond the initial 30-day period, unless such failure to close is primarily the
result of the breach of any representations, warranties, covenants or
agreements contained in this Agreement by the party seeking to terminate.  Notwithstanding the foregoing, in the event
the Closing shall not have occurred on or before May 1, 2008 and the
[****]*, Buyer may terminate this Agreement on or after May 1, 2008, provided,
that Buyer, prior to May 1, 2008, shall have used its best efforts to
obtain [****]*.


 


12.2         Effect
of Termination.  In the event of
termination of this Agreement prior to the Closing, in accordance with its
terms:  (i) each party will
redeliver all documents, work papers and other material of any other party
relating to the transactions contemplated hereby, whether so obtained before or
after the Effective Date, to the party furnishing the same; (ii) the
provisions of Article 11 shall continue in full force and effect;
and (iii) no party hereto shall have any Liability or further obligation
to any other party to this Agreement, except for willful breach.


 


12.3         Effectiveness
of Termination.  Termination under
this Article 12 shall not become effective so long as the alleged
grounds for termination are in dispute and the matter(s) at issue have
been submitted for resolution pursuant to this Agreement.


 






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ARTICLE 13




INDEMNIFICATION


 


13.1         Survivability
of Representations and Warranties. 
The representations and warranties made in Articles 6 and 7
or any instrument delivered pursuant to this Agreement shall not survive after
the Closing Date; provided, however, that the representations and
warranties of Seller in Sections 6.5 and 6.6 shall survive until
[****]* (the “Survival Date”).


 


13.2         Indemnification
by Buyer.  Buyer indemnifies and
holds harmless Seller, and any of its directors, officers, employees,
Affiliates, controlling persons, agents and representatives (the “Seller
Indemnitees”) from and against any Liabilities (a) to the extent such
Liabilities relate to the Assumed Liabilities, (b) arising from Buyer’s
breach of or non-performance of any covenant or agreement under this Agreement
or any instrument delivered pursuant to this Agreement, or (c) arising
from the conduct of the Business after the Closing.


 


13.3         Indemnification
by Seller.  Seller indemnifies and
holds harmless Buyer, and any of its directors, officers, employees,
Affiliates, controlling persons, agents and representatives (the “Buyer
Indemnitees”) from and against any Liabilities (a) to the extent such
Liabilities relate to the Excluded Liabilities, (b) arising from Seller’s
breach of or non-performance of any covenant or agreement under this Agreement
or any instrument delivered pursuant to this Agreement, (c) arising from
the conduct of the Business on or prior to the Closing, or (d) arising
from any breach of the representations or warranties of Seller contained in Section 6.6
(Intellectual Property).  [****]* shall
have no obligations with respect to any [****]*.


 


13.4         Claims.  Any Buyer Indemnitee or Seller Indemnitee
claiming it may be entitled to indemnification under this Article 13
(the “Indemnified Party”) shall give prompt notice to the other party
(the “Indemnifying Party”) of each matter, action, cause of action,
claim, demand, fact or other circumstances upon which a claim for
indemnification (a “Claim”) under this Article 13 may be
based.  Such notice shall contain, with
respect to each Claim, such facts and information as are then reasonably
available, the specific basis for indemnification hereunder, together with the
amount or, if not then reasonably ascertainable, the estimated amount,
determined in good faith.  Failure to
give prompt notice of a Claim hereunder shall not affect the Indemnifying
Party’s obligations under this Section, except to the extent the Indemnifying
Party is prejudiced by such failure.


 


13.5         Assertion
of Claims.  No claim shall be brought
under Sections 13.2, 13.3 or 13.4 hereof unless the Buyer
Indemnitees, or any of them, or the Seller Indemnitees, or any of them, as the
case may be, at any time prior to the applicable Survival Date, provide Buyer
or Seller, as the case may be, with written notice of the existence of any such
claim, reasonably specifying the nature and basis of such claim and the amount
thereof, to the extent known; provided, that, the failure so to provide
such notice to Buyer or Seller, as the case may be, will not relieve Buyer or
Seller, as the case may be, from any Liability which they may have to the Buyer
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the Seller Indemnitees, as the case may be,
under this Agreement or otherwise, except to the extent that Buyer or Seller,
as the case may be, reasonably demonstrates that such failure results in the
loss or compromise of any rights or defenses of Buyer or Seller, as the case
may be, and that Buyer or Seller, as the case may be, were not otherwise aware
of such action or claim.  Upon the giving
of such written notice as aforesaid, the Buyer Indemnitees, or any of them, or
the Seller Indemnitees, or any of them, as the case may be, shall have the
right to commence legal proceedings prior or subsequent to the Survival Date
for the enforcement of their rights under Sections 13.2, 13.3 or 13.4
hereof, as the case may be.


 


13.6         Payment
of Claims; Limitation on Indemnification. 
Notwithstanding anything to the contrary in Sections 13.3 or 13.4,
any Liability under Section 13.3(d) shall limited as follows:
[****]*.


 


13.7         Limitation;
Exclusivity.  No Claim shall be made
or have any validity unless the Indemnified Party shall have given written
notice of such Claim to the Indemnifying Party. 
If full recovery under any such Claim is not had within [****]* of such
written notice, arbitration, pursuant to Section 14.4, must be
commenced within thirty (30) days following the end of such [****]* or such
Claim shall be invalidated.  This Article 13
provides the exclusive means by which a party may assert Claims against the
other party and Section 14.4 provides the exclusive means by which
a party may bring actions against the other party with respect to any breach by
the other party of its indemnification obligations under this Article 13.


 


ARTICLE 14




MISCELLANEOUS


 


14.1         Survival
of Covenants and Agreements.  The
covenants and agreements contained in Sections 2.1, 2.2, 2.3
and 2.4 shall survive Closing [****]*. 
All other covenants and agreements herein shall survive Closing until
[****]* the last date on which such covenant or agreement is to be performed
or, if no such date is specified [****]*. 
Any covenant or agreement that would otherwise terminate in accordance
with the above will continue to survive if a notice of a Claim shall have been
timely given under Article 13 on or prior to such termination date,
until the related claim for indemnification has been satisfied or otherwise
resolved as provided in Article 13.


 


14.2         No
Third Party Beneficiaries.  Nothing
in this Agreement, express or implied, is intended to or shall (i) confer
on any person other than the parties hereto (and Buyer Indemnitees and Seller
Indemnitees referred to herein) and their respective successors or assigns any
rights (including third party beneficiary rights), remedies, obligations or
liabilities under or by reason of this Agreement, or (ii) constitute the
parties hereto as partners or as participants in a joint venture.  This Agreement shall not provide third
parties with any remedy, claim, liability, reimbursement, cause of action or
other right in excess of those existing without reference to the terms of this
Agreement.  No third party shall have any
right, independent of any right which 


 






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may exist irrespective of this Agreement,
under or granted by this Agreement, to bring any suit at law or equity for any
matter governed by or subject to the provisions of this Agreement.


 


14.3         Force
Majeure.  If the performance by
either party of any obligation under this Agreement is prevented, restricted,
interfered with or delayed by reason of any cause beyond the reasonable control
of the party liable to perform, unless conclusive evidence to the contrary is
provided, the party so affected shall, upon giving written notice to the other
party, be excused from such performance to the extent of such prevention,
restriction, interference or delay, provided that the affected party shall use
its reasonable efforts to avoid or remove such causes of non-performance and
shall continue performance with the utmost dispatch whenever such causes are
removed.  When such circumstances arise,
the parties shall discuss what, if any, modification of the terms of this
Agreement may be required in order to arrive at an equitable solution.


 


14.4         Governing
Law; Jurisdiction; Dispute Resolution and Arbitration.  This Agreement shall be deemed to have been
made in the State of California and its form, execution, validity, construction
and effect shall be determined in accordance with the laws of the State of
California, without giving effect to the principles of conflicts of law
thereof.  Disputes arising out of,
relating to or in connection with this Agreement, or in relations between the
parties with respect to the subject matter hereof, for any reason or under any circumstances,
will be finally settled by a single arbitrator in a binding arbitration in
accordance with the Judicial Arbitration and Mediation Services (“JAMS”)
Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”).  Upon receipt of written notice of the
existence of a dispute by one party hereto to the other, the parties shall,
within thirty (30) days conduct a meeting of one or more senior executives of
each party, with full settlement authority, in an attempt to resolve the
dispute.  Each party shall make available
appropriate personnel to meet and confer with the other party reasonably within
the thirty-day period.  Upon the
expiration of the thirty-day period, or upon the termination of discussions between
the senior executives, either party may elect arbitration of any dispute by
written notice to the other (the “Arbitration Notice”).  The arbitration shall be held in San
Francisco, California before one (1) arbitrator from JAMS having
substantial experience as a jurist and mediator with significant disputes in
the biotechnology and/or pharmaceuticals industry selected by the mutual
agreement of the Buyer and the Seller; provided, however, that if
such parties cannot agree on an arbitrator within thirty (30) days of the
Arbitration Notice, either party may request JAMS select the arbitrator, and
JAMS shall select an arbitrator pursuant to the procedure set out by the JAMS
rules, provided, however, that the arbitrator selected be a former judge with
at least fifteen (15) years experience addressing as a jurist and/or mediator
significant disputes in the biotechnology and or pharmaceutical industry.  The arbitration shall be administered by JAMS
pursuant to its AAA Rules.  Judgment on
the arbitration award may be entered in any court having jurisdiction.  The arbitrator may, in the arbitration award,
allocate for payment by the non-prevailing party all or part of the costs of
the arbitration, including fees of the arbitrator and the reasonable attorneys’
fees and costs incurred by the prevailing party.  This Section shall not preclude the
parties from seeking provisional remedies in aid of arbitration from a court of
appropriate jurisdiction.  In respect of
any actions for injunctive or other equitable relief hereunder, any action or
proceeding may be brought against any party in the state and federal courts
located in the city of San Francisco, California and each of the parties
consents to the jurisdiction of such courts in any such action or proceeding
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14.5         Severability.  If any provision of this Agreement is held by
a court of competent jurisdiction to be invalid or unenforceable, it shall be
modified, if possible, to the minimum extent necessary to make it valid and
enforceable or, if such modification is not possible, such provision shall be
stricken and the remaining provisions shall remain in full force and effect;
provided, however, that if a provision is stricken so as to significantly alter
the economic arrangements of this Agreement, the party adversely affected may
terminate this Agreement upon [****]* prior written notice to the other
party.  If any of the terms or provisions
of this Agreement is in conflict with any applicable statute or rule of
law in any jurisdiction, then such term or provision shall be deemed
inoperative in such jurisdiction to the extent of such conflict and the parties
will renegotiate the affected terms and conditions of this Agreement to resolve
any inequities.


 


14.6         Entire
Agreement.  This Agreement and the
ancillary transaction documents to be executed and delivered pursuant to this
Agreement are intended to define the full extent of the legally enforceable
undertakings and representations of the parties hereto, and no promise or
representation, written or oral, which is not set forth explicitly in this
Agreement or such ancillary transaction documents is intended by either party
to be legally binding; provided, however, in the event this Agreement
terminates, the Confidentiality Agreement shall continue in full force and
effect pursuant to its terms.  Each of
the parties acknowledge that in deciding to enter into this Agreement and to
consummate the transaction contemplated hereby none of them has relied upon any
statements or representations, written or oral, other than those explicitly set
forth in this Agreement.


 


14.7         Amendment.  This Agreement may not be amended,
supplemented or otherwise modified except by an instrument in writing signed by
both parties that specifically refers to this Agreement.


 


14.8         Notices.  All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed effectively
given:  (i) upon personal delivery
to the party to be notified, (ii) when sent by confirmed facsimile, (iii) five
(5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. 
All communications shall be sent to the respective parties at the
addresses set forth below (or at such other addresses as shall be specified by
notice given in accordance with this Section):


 


	
  If to
  Seller:

  	
  PDL
  BioPharma, Inc.

  
	
   

  	
  Attention:
  General Counsel

  
	
   

  	
  1400 Seaport
  Boulevard

  
	
   

  	
  Redwood
  City, CA 94063

  
	
   

  	
  Facsimile:
  650-454-1468

  
	
   

  	
  E-mail: Francis.Sarena@pdl.com

  



 






* Certain information on this page has been
omitted and filed separately with the SEC. 
Confidential treatment has been requested with respect to the omitted
portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


51

















 


	
  with a copy
  to:

  	
  DLA Piper US
  LLP

  
	
  (not to
  constitute notice)

  	
  Attention:
  Howard Clowes

  
	
   

  	
  153 Townsend
  Street, Suite 800

  
	
   

  	
  San
  Francisco, CA 94107-1957

  
	
   

  	
  Facsimile:
  415- 659-7410

  
	
   

  	
  E-mail: howard.clowes@dlapiper.com

  
	
   

  	
   

  
	
  If to Buyer:

  	
  EKR
  Therapeutics, Inc.

  
	
   

  	
  Attention:
  Richard DeSimone

  
	
   

  	
  7 East
  Frederick Place

  
	
   

  	
  Cedar
  Knolls, NJ 07927

  
	
   

  	
  Facsimile:
  +1 (866) 620-6848

  
	
   

  	
  E-mail: r.desimone@ekrtx.com

  
	
   

  	
   

  
	
  with a copy
  to:

  	
  Milbank, Tweed, Hadley & McCloy LLP

  
	
  (not to constitute notice)

  	
  Attention: Robert S. Reder, Esq.

  
	
   

  	
  One Chase Manhattan Plaza

  
	
   

  	
  New York, New York 10005

  
	
   

  	
  Facsimile No.: +1 (212) 822-5680

  
	
   

  	
  E-mail: RReder@milbank.com

  



 


14.9         Assignment.  This Agreement and the rights and obligations
hereunder shall be binding upon and inure to the benefit of the parties hereto,
their respective successors and assigns, but this Agreement shall not be
assignable by either party hereto without the express written consent of the
other party hereto which will not be unreasonably withheld, provided, however,
that Buyer may merge or consolidate with, or assign any or all of its rights,
interests and obligations hereunder to, a direct or indirect wholly-owned
subsidiary of Buyer, provided that no such merger, consolidation or assignment
shall relieve Buyer of its obligations hereunder, [****]*.


 


14.10       No
Agency.  It is understood and agreed
that each party shall have the status of an independent contractor under this
Agreement and that nothing in this Agreement shall be construed as
authorization for either party to act as agent for the other.  Neither party shall incur any Liability for
any act or failure to act by employees of the other party.


 


14.11       Construction.


 


(a)           This
Agreement has been prepared jointly and shall not be strictly construed against
either party.


 


(b)           For
purposes of this Agreement, whenever the context requires:  the singular number shall include the plural,
and vice versa; the masculine gender shall include the feminine and neuter
genders; the feminine gender shall include the masculine and neuter genders;
and the neuter gender shall include the masculine and feminine genders.


 






* Certain information on this page has been
omitted and filed separately with the SEC. 
Confidential treatment has been requested with respect to the omitted
portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 


52

















 


(c)            Except
as otherwise indicated, all references in this Agreement to “Articles,”
“Sections,” “Exhibits” and “Schedules” are intended to refer to Articles and
Sections and Exhibits and Schedules to this Agreement.


 


(d)           The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.


 


14.12       Payment
of Expenses.  Except as otherwise set
forth in this Agreement or in the Transition Services Agreement, all costs and
expenses associated with this Agreement and the transactions contemplated
thereby, including the fees of counsel and accountants, shall be borne by the
party incurring such expenses.


 


14.13       Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument. 
Any executed counterpart delivered by facsimile or other means of
electronic transmission shall be deemed an original for all purposes.


 


[Remainder of page intentionally left
blank; signature page follows]


 


CONFIDENTIAL TREATMENT REQUESTED


 


53

















 


IN WITNESS WHEREOF, the parties, through
their authorized officers, have duly executed this as of the date first written
above.


 


 


	
   

  	
   

  	
  PDL BioPharma, Inc.,

  	
   

  
	
   

  	
   

  	
  a Delaware corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ L.
  Patrick Gage

  
	
   

  	
   

  	
  Name: 

  	
  L. Patrick
  Gage

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Andrew
  Guggenhime

  
	
   

  	
   

  	
  Name: 

  	
  Andrew Guggenhime

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President and

  	
   

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EKR Therapeutics, Inc.,

  	
   

  
	
   

  	
   

  	
  a Delaware corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Howard Weisman

  
	
   

  	
   

  	
  Name:

  	
  Howard Weisman

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chairman and Chief Executive 

  	
   

  
	
   

  	
   

  	
   

  	
  Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard DeSimone

  
	
   

  	
   

  	
  Name:

  	
  Richard DeSimone

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
							



 


 


SIGNATURE PAGE


ASSET PURCHASE AGREEMENT


 


CONFIDENTIAL TREATMENT  REQUESTED


 














 


EXHIBIT A


 


GENERAL
ASSIGNMENT AND BILL OF SALE


 


THIS GENERAL ASSIGNMENT AND BILL OF SALE
(this “Bill of Sale”‘) is made and  delivered as of [                         ], 2008 (the “Effective
Date”) by PDL BioPharma, Inc., a Delaware corporation (“Seller”) for
the benefit of EKR Therapeutics, Inc., a Delaware corporation (“Buyer”)
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Purchase Agreement (as defined below).


 


RECITALS


 


WHEREAS, Seller and Buyer have entered into
that certain Asset Purchase Agreement (the “Purchase Agreement”), dated
as of February [        ], 2008,
pursuant to which, among other things, Seller has agreed to sell, convey,
transfer, assign and deliver to Buyer all of Seller’s right, title and interest
in and to the Assets.


 


NOW, THEREFORE, in
consideration of the agreements and covenants contained in the Purchase
Agreement, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, and subject to the terms and
conditions of the Purchase Agreement:


 


1.             Transfer of Assets. Seller hereby sells, conveys,
transfers, assigns and delivers unto Buyer, and its successors and assigns,
forever, all of Seller’s right, title and interest in and to the Assets. Buyer
hereby accepts the sale, transfer, conveyance, assignment and delivery of the
Assets.


 


2.             Further Assurances. At any time or from time to
time after the date hereof, at Buyer’s request and without further
consideration, Seller shall execute and deliver to Buyer such other instruments
of sale, transfer, conveyance, assignment and confirmation, provide such
materials and information and take such other actions as Buyer may reasonably
deem necessary or desirable in order more effectively to transfer, convey and
assign to Buyer, and to confirm Buyer’s title to, all of the Assets, and, to
the full extent permitted by law, to put Buyer in actual possession and
operating control of the Business and the Assets and to assist Buyer in
exercising all rights with respect thereto, and otherwise to cause Seller to
fulfill its obligations under the Purchase Agreement. Without limiting the
foregoing, in the event that any Affiliate of Seller has any right, title or
interest in any Asset (or any other asset used in the Business that would
otherwise be an Asset if owned by Seller), then Seller shall cause such
Affiliate to transfer and assign all such right, title and interest to Buyer.


 


3.             Power of Attorney. Seller hereby constitutes and
appoints Buyer the true and lawful attorney of Seller, with full power of
substitution, in the name of Seller or Buyer, but on behalf of and for the
benefit of Buyer: (i) to demand and receive from time to time any and all
Assets and to make endorsements and give receipts and releases for and in
respect of the same and any part thereof; (ii) to institute, prosecute,
compromise and settle any and all actions or proceedings that Buyer may deem
proper in order to collect, assert or enforce any claim, right or title of any
kind in or to the Assets; (iii) to defend or compromise any or all actions
or proceedings in respect of any of the Assets; and (iv) to do all such
acts and things in relation to the matters set forth in the preceding clauses (i) through
(iii) as Buyer shall deem desirable. Seller hereby acknowledges that the
appointment hereby made and the powers hereby granted are coupled with an
interest and are not and shall not be revocable by it in any manner or for any


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


reason. Seller shall deliver to Buyer at Closing an acknowledged power
of attorney to the foregoing effect executed by Seller. Buyer shall
indemnify and hold harmless Seller from any and all losses caused by
or arising out of any breach of law by Buyer in its exercise of the aforesaid
powers.


 


4.             Purchase
Agreement Controls. Nothing in this Bill of Sale, express or implied, is
intended or shall be construed to modify, expand or limit in any way the terms
of the Purchase Agreement. In the event of any conflict or inconsistency
between the terms of the Purchase Agreement and the terms hereof, the
terms of the Purchase Agreement shall govern.


 


5.             No
Additional Remedies. Nothing in this Bill of Sale, express or implied, is
intended or shall be construed to confer upon, or give to, any person
other than Buyer and its successors and assigns any remedy or claim under
or by reason of this Bill of Sale.


 


6.             Binding
Effect. This Bill of Sale shall be binding upon and shall inure to the
benefit of Buyer and Seller and their respective successors and assigns.


 


7.             Governing
Law. This Bill of Sale shall be governed by and construed under the laws of
the State of California without regard to conflicts of laws principles.


 


[SIGNATURE PAGE FOLLOWS]


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the
date first above written.


 


	
   

  	
  PDL BioPharma, Inc.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


EXHIBIT B


 


ASSIGNMENT
AND ASSUMPTION AGREEMENT


 


THIS ASSIGNMENT AND ASSUMPTION AGREEMENT
(this “Agreement”) is made and entered into as of [        ],
2008 (the “Effective Date”“) by and among PDL BioPharma, Inc., a
Delaware corporation (“Seller”) and EKR Therapeutics, Inc., a
Delaware corporation (“Buyer”). Buyer and Seller are referred to
hereinafter as the “Parties”.


 


RECITALS


 


WHEREAS, the Parties have entered into that
certain Asset Purchase Agreement (the “Purchase Agreement”), dated as of
February [          ],
2008, pursuant to which, among other things, Seller has agreed to assign, and
Buyer has agreed to assume, the Assumed Liabilities.


 


NOW, THEREFORE, in consideration of the agreements
and covenants contained in the Purchase Agreement, and the premises and mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, do hereby agree as follows:


 


1.             Capitalized Terms. Capitalized terms used but not
defined herein (including in the recitals above) shall have the meanings
ascribed to them in the Purchase Agreement.


 


2.             Assignment. In accordance with and subject to the
terms of the Purchase Agreement, Seller hereby sells, assigns, transfers,
conveys and delivers to Buyer, to the extent that such are legally assignable
and any necessary consents to assignment have been obtained, all of Seller’s
right, title and interest in, to and under the Assumed Liabilities (the “Assignment”).


 


3.             Assumption. In accordance with and subject to the
terms of the Purchase Agreement, Buyer hereby (a) accepts, to the extent
that the assets and liabilities included therein are legally assignable and
necessary consents to assignment have been obtained, the Assignment and (b) assumes
and agrees to honor, pay and discharge when due all of the Assumed Liabilities.
For the avoidance of doubt, Buyer assumes no Liability of Seller other than as
specifically stated above, and, specifically, does not assume the Excluded
Liabilities, and the Parties agree that all Liabilities that have not been
assigned herein shall remain the sole responsibility of Seller. Furthermore,
nothing contained herein shall prevent Buyer from having the ability to
contest, in good faith, any claim of Liability asserted by any person or entity
other than Seller and its Affiliates.


 


4.             Purchase Agreement Controls. Each of the Parties
hereby acknowledges and agrees that the representations, warranties, covenants,
agreements and indemnities contained in the Purchase Agreement shall not be
superseded hereby but shall remain in full force and effect to the full extent
provided therein. In the event of any conflict or inconsistency between the
terms of the Purchase Agreement and the terms hereof, the terms of the Purchase
Agreement shall govern.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


5.            No
Additional Remedies. Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon, or give to, any person other
than Seller, Buyer and their respective successors and assigns any remedy or
claim under or by reason of this Agreement.


 


6.            Governing
Law. This Agreement will be governed by and construed under the laws of the
State of California without regard to conflicts of laws principles.


 


7.            Binding
Effect. This Agreement shall inure to the benefit of, and shall be binding
upon, the Parties hereto and their respective successors and assigns only. This
Agreement shall not provide third parties with any remedy, claim, liability,
reimbursement, cause of action or other right in excess of those existing
without reference to the terms of this Agreement. No third party shall have any
right, independent of any right which may exist irrespective of this Agreement,
under or granted by this Agreement, to bring any suit at law or equity for any
matter governed by or subject to the provisions of this Agreement.


 


8.            Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but which together shall constitute one and the same
instrument. Any executed counterpart delivered by facsimile or other means of
electronic transmission shall be deemed an original for all purposes.


 


[SIGNATURE PAGE FOLLOWS]


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  PDL BioPharma, Inc.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  EKR Therapeutics, Inc.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


CONFIDENTIAL TREATMENT REQUESTED


 














 


EXHIBIT C


 


PATENT ASSIGNMENT


 


THIS PATENT ASSIGNMENT (this
“Assignments is made and delivered as of [                               ], 2008 (the “Effective
Date”) by PDL BioPharma, Inc., a Delaware corporation (“Assignor”)
for the benefit of EKR Therapeutics, Inc., a Delaware corporation (“Assignee”).
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Purchase Agreement (as defined below).


 


RECITALS


 


WHEREAS, Assignor and Assignee have entered
into that certain Asset Purchase Agreement (the “Purchase Agreement”),
dated as of February [        ],
2008, pursuant to which, among other things, Assignor has agreed to sell,
convey, transfer, assign and deliver to Assignee all of Assignor’s right, title
and interest in and to the Patents set forth on Exhibit A.


 


NOW, THEREFORE, in
consideration of the agreements and covenants contained in the Purchase
Agreement, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, and subject to the terms and
conditions of the Purchase Agreement:


 


1.             Assignment. Assignor hereby sells, assigns,
transfers and conveys unto Assignee, all of its right, title and interest
together with the benefits and privileges in and to the Patents, including
without limitation, all inventions and discoveries, applications for patents or
similar forms of protection in the Territory, and all other applications for
patents on such inventions and discoveries in whatsoever countries, as set
forth in Exhibit A, including all divisional, renewal, substitute,
continuation and convention applications based in whole or in part upon said
inventions or discoveries, or upon said applications, and any and all patents,
reissues and extensions of patents or similar forms of protection granted for
said inventions and discoveries or upon said applications, and every priority
right that is or may be predicated upon or arise from said inventions, said
discoveries, said applications and said patents, and the right to recover for
damages from past, present and future infringements thereof, if any.


 


2.             Cooperation. Assignor hereby covenants and agrees
to reasonably cooperate with Assignee to enable Assignee to enjoy to the
fullest extent the right, title and interest herein conveyed. Such reasonable
cooperation by Assignor shall include production of pertinent facts and
documents, giving of testimony, execution of petitions, oaths, specifications,
declarations or other papers, and other assistance all to the extent deemed
reasonably necessary by Assignee, (a) for perfecting in Assignee the
right, title and interest herein conveyed; (b) for filing and prosecuting
substitute, divisional, continuing or additional applications covering the
Patents; (c) for filing and prosecuting applications for re-issuance of
any of the Patents; (d) for interference or other priority proceedings
involving the Patents; and (e) for legal proceedings involving the Patents
for infringement actions and court actions; provided, however, that the costs
and expenses incurred by Assignor in providing such cooperation shall be paid
for by Assignee.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


3.             Purchase
Agreement Controls. Nothing in this Assignment, express or implied, is
intended or shall be construed to modify, expand or limit in any way the terms
of the Purchase Agreement. In the event of any conflict or inconsistency
between the terms of the Purchase Agreement and the terms hereof, the terms of
the Purchase Agreement shall govern.


 


4.             No
Additional Remedies. Nothing in this Assignment, express or implied, is
intended or shall be construed to confer upon, or give to, any person other
than Assignee and its successors and assigns any remedy or claim under or by
reason of this Assignment.


 


5.             Binding
Effect. This Assignment shall be binding upon and shall inure to the
benefit of Assignee and Assignor and their respective successors and assigns.


 


6.             Governing
Law, This Assignment shall be deemed to have been made in, and shall be
governed by and construed pursuant to the laws of the State of California and
the United States without regard to any conflicts of laws provisions that would
require the application of the laws of any other jurisdiction.


 


[SIGNATURE PAGE FOLLOWS]


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


IN WITNESS WHEREOF, Assignor
has executed and delivered this instrument to Assignee.


 


	
   

  	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PDL BioPharma, Inc.,

  
	
   

  	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  (name of officer)

  
	
   

  	
   

  	
  (Title of officer)

  
	
   

  	
   

  	
   

  
	
  State
  of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  County
  of

  	
   

  	
   

  
								



 


On                         before
me,                                                           ,
Notary Public, personally appeared
                     a
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized
capacity(ies), and that by his/her signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.


 


Witness my hand and official seal.


 


Notary Public


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


EXHIBIT D


 


TRADEMARK
ASSIGNMENT


 


THIS TRADEMARK ASSIGNMENT (this “Assignment”‘) is made and
delivered as of [                      ],
2008 (the “Effective Date”) by PDL BioPharma, Inc., a Delaware
corporation (“Assignor”) for the benefit of EKR Therapeutics, Inc.,
a Delaware corporation (“Assignee”). Assignor and Assignee are referred
to hereinafter as the “Parties”. Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Purchase Agreement
(defined below).


 


RECITALS


 


WHEREAS, Assignor and Assignee have entered into that certain Asset
Purchase Agreement (the “Purchase Agreement”), dated as of February [        ],
2008, pursuant to which, among other things, Assignor has agreed to sell,
convey, transfer, assign and deliver to Assignee all of Assignor’s right, title
and interest in and to the Trademarks set forth on Exhibit A.


 


NOW, THEREFORE, in
consideration of the agreements and covenants contained in the Purchase
Agreement, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, and subject to the terms and
conditions of the Purchase Agreement:


 


1.             Assignment. Assignor hereby assigns, sells,
transfers and conveys to Assignee all right, title and interest, including any
common law rights, in the Territory and throughout the world, in and to the
Trademarks, together with the related goodwill of the Business symbolized by
the Trademarks and the right to recover for damages from past, present and
future infringements thereof, if any.


 


2.             Cooperation. Assignor hereby covenants and agrees
to reasonably cooperate with Assignee to enable Assignee to enjoy to the
fullest extent the right, title and interest herein conveyed. Such reasonable
cooperation by Assignor shall include production of pertinent facts and
documents, giving of testimony, execution of oaths, declarations or other
papers, and other assistance as is reasonably necessary for perfecting in
Assignee the right, title and interest herein conveyed; provided, however, that
the costs and expenses incurred by Assignor in providing such cooperation shall
be paid for by Assignee.


 


3.             Purchase Agreement Controls. Nothing in this
Assignment, express or implied, is intended or shall be construed to modify,
expand or limit in any way the terms of the Purchase Agreement. In the event of
any conflict or inconsistency between the terms of the Purchase Agreement and
the terms hereof, the terms of the Purchase Agreement shall govern.


 


4.             No Additional Remedies. Nothing in this
Assignment, express or implied, is intended or shall be construed to confer
upon, or give to, any person other than Assignee and its successors and assigns
any remedy or claim under or by reason of this Assignment.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


5.             Binding Effect. This Assignment shall be binding
upon and shall inure to the benefit of Assignee and Assignor and their
respective successors and assigns.


 


6.             Governing
Law. This Assignment shall be deemed to have been made in, and shall be
governed by and construed pursuant to the laws of the State of California and
the United States without regard to any conflicts of laws provisions that would
require the application of the laws of any other jurisdiction.


 


[SIGNATURE PAGE FOLLOWS]


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


IN WITNESS WHEREOF, Assignor has caused this
Agreement to be executed by its duly authorized representatives as of the
Effective Date.


 


 


	
  ASSIGNOR:

  	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  	
   

  
	
  PDL
  BioPharma, Inc.,

  	
   

  	
  EKR
  Therapeutics, Inc.,

  
	
  a Delaware corporation

  	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witnessed by:

  	
   

  	
  Witnessed by:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Name:

  
	
  Title:

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witnessed by:

  	
   

  	
  Witnessed by:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Name:

  
	
  Title:

  	
   

  	
  Title:

  
									



 


State of California

County of


 


On
                                
personally appeared                                                                       ,
personally appeared
                                                                                                                  ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and 

acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by 

his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, 

executed the instrument.


 


I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.


 


WITNESS my hand and official seal.


 


	
  Signature

  	
   

  	
   

  	
  (Seal)

  



 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


State of California


County of


 


On
                                
before me,
                                                                      ,
personally appeared                                                                                                                ,
who proved to me on the basis  of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and mat by
his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.


 


I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.


 


WITNESS my hand and official seal.


 


 


	
  Signature

  	
   

  	
   

  	
  (Seal)

  



 


CONFIDENTIAL TREATMENT REQUESTED


 














 


EXHIBIT E


 


DOMAIN NAME
ASSIGNMENT


 


THIS DOMAIN NAME ASSIGNMENT (this “Assignment”)
is made and delivered as of [      ], 2008 (the “Effective Pate”) by PDL
BioPharma, Inc., a Delaware corporation (“Assignor”) for the
benefit of EKR Therapeutics, Inc., a Delaware corporation (“Assignee”),
Assignor and Assignee are referred to hereinafter as the “Parties”.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Purchase Agreement (defined below).


 


RECITALS


 


WHEREAS, Assignor and Assignee have entered into
that certain Asset Purchase Agreement (the “Purchase Agreement”), dated
as of February [          ],
2008, pursuant to which, among other things, Assignor has agreed to sell,
convey, transfer, assign and deliver to Assignee all of Assignor’s right, title
and interest in and to each of the internet domain names listed in Exhibit A
attached hereto, all of which domain names have been registered with an
Internet Corporation for Assigned Names and Numbers (“ICANN”) accredited
registrar (all of such domain names are herein referred to as the “Domain
Names”).


 


NOW, THEREFORE, in
consideration of the agreements and covenants contained in the Purchase
Agreement, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, and subject to the terms and
conditions of the Purchase Agreement:


 


1.                                       Assignment. Assignor hereby assigns, sells, transfers and conveys to Assignee all
right, title and interest, in and to the Domain Names, together with the
related goodwill of the Business symbolized by the Domain Names and the right
to recover for damages from past, present and future infringements thereof, if
any.


 


2.                                       Cooperation. Assignor hereby covenants and agrees to reasonably cooperate with
Assignee to execute and deliver all papers, instruments and assignments, and to
provide transfer authorization codes to Assignee, send confirming emails to the
appropriate Registrar and follow other electronic procedures, as may be
reasonably necessary to vest all right, title and interest in and to the Domain
Names with Assignee, including, the proper transfer of the registration of the
Domain Names as required by ICANN. Assignor will complete Assignor’s portion of
the assignment procedure established by the applicable domain name Registrar(s) and
inform Assignee of the completion of such procedures (or any other assignment
procedure reasonably specified by the Registrars) at the time of the
assignment) within ten (10) business days from the Effective Date.


 


3.                                       Purchase Agreement Controls. Nothing in this Assignment, express or
implied, is intended or shall be construed to modify, expand or limit in any
way the terms of the Purchase Agreement. In the event of any conflict or
inconsistency between the terms of the Purchase Agreement and the terms hereof,
the terms of the Purchase Agreement shall govern.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


4.                                      No Additional Remedies. Nothing in this Assignment, express or
implied, is intended or shall be construed to confer upon, or give to, any
person other than Assignee and its successors and assigns any remedy or claim
under or by reason of this Assignment.


 


5.                                      Binding Effect. This Assignment shall be binding upon and
shall inure to the benefit of Assignee and Assignor and their respective
successors and assigns.


 


6.                                      Governing Law. This Assignment shall be governed by and
construed under the laws of the State of California without regard to conflicts
of laws principles.


 


[SIGNATURE PAGE FOLLOWS]


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


IN WITNESS WHEREOF, Assignor has caused this
Agreement to be executed by its duly authorized representatives as of the
Effective Date.


 


 


	
   

  	
  PDL BioPharma, Inc.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


EXHIBIT F


 


TRANSITION
SERVICES AGREEMENT


 


THIS TRANSITION SERVICES AGREEMENT (this “Agreement”),
dated as of [     ], 2008 (the “Effective Date”“),
is made by and between, EKR Therapeutics, Inc., a Delaware corporation (“Buyer”),
and PDL BioPharma, Inc., a Delaware corporation (“PDL”).


 


WHEREAS, pursuant to that certain Asset
Purchase Agreement, dated as of February,
        , 2008, by and between Buyer
and PDL (the “Asset Purchase Agreement”). Buyer has purchased certain
assets (the “Acquisition”‘) from PDL relating to the CV Products (as
defined in the Asset Purchase Agreement); and


 


WHEREAS, in connection with
the Acquisition, Buyer desires to engage PDL to perform the Transition Services
(as defined below), upon the terms and subject to the conditions set forth
herein.


 


NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Buyer and PDL agree as follows:


 


ARTICLE I


DEFINITIONS


 


Section 1.1  Definitions.
As used in this Agreement, the following terms shall have the meanings ascribed
to them below. Terms used in this Agreement that are not otherwise defined
herein shall have their respective meanings as set forth in the Asset Purchase
Agreement.


 


“Acquisition” has the meaning set forth in
the recitals.


 


“Affiliate” means,
with respect to any Person, any other Person that directly or indirectly
Controls, is Controlled by or is under common Control with such first Person. A
Person will be deemed to “Control” another Person if such first Person
has the power to direct or cause the direction of the management and policies
of such other Person, whether through ownership of securities, by contract or
otherwise.


 


“Governmental Rules”
means any applicable law, judgment, order, award, decree, statute, ordinance, rule or
regulation issued or promulgated by any Governmental Entity.


 


“Losses” means any
and all damages, losses, Taxes, Liabilities, Claims, judgments, penalties,
costs and expenses, including reasonable attorneys fees and litigation
expenses.


 


“PDL” has the meaning set forth in the introductory paragraph.


 


“Person” means any individual,
corporation, partnership, limited liability company, joint venture, trust,
business association, organization, Governmental Entity or other entity.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


“Term” has the meaning set forth in Section 5.1.


 


“Transaction
Documents” mean any and all agreements between PDL and Buyer executed in
connection with or arising under the Acquisition.


 


“Transfer Taxes”
means any sales, use, services, transfer or similar taxes imposed on PDL’s
provision of Transition Services to Buyer.


 


“Transition Services” mean those
services set forth on Exhibit A. which shall be consistent with PDL’s
practices during the six (6) months prior to the Effective Date for
similar services performed by PDL in connection with the Business.


 


“Transition Services Team” has the meaning set forth in Section 2.2(c).


 


Section 1.2    
Interpretation.


 


(a)                                  When used in this Agreement, the words “include,”
“includes” and “including” shall be deemed to be followed by the words “without
limitation.”


 


(b)                                 Any terms defined in the singular shall have
a comparable meaning when used in the plural, and vice-versa.


 


(c)                                  All references to any introductory paragraph,
recitals, Articles, Sections, Exhibits and Schedules shall be deemed references
to the introductory paragraph, recitals, Articles, Sections, Exhibits and
Schedules to this Agreement unless otherwise specifically set forth herein.


 


(d)                                 This Agreement shall be deemed drafted
jointly by Buyer and PDL and shall not be specifically construed against either
party based on any claim that such party or its counsel drafted this Agreement.


 


ARTICLE II


TRANSITION SERVICES


 


Section 2.1  Transition
Services. During the Term, upon the terms and subject to the conditions of
this Agreement, PDL hereby agrees to perform the Transition Services as
requested by Buyer from time to time. Buyer shall reimburse PDL for the fees
and expenses set forth on Exhibit B. as applicable, in connection
with PDL’s performance of the Transition Services.


 


Section 2.2    
Personnel: Quality of Work.


 


(a) PDL shall provide
the services of appropriately skilled and experienced Persons in numbers
sufficient to complete the performance of the Transition Services under this
Agreement, for so long as PDL shall be responsible for the same as provided
herein, in a prompt, thorough and efficient manner. In such performance of the
Transition Services, PDL may, as it deems necessary or appropriate in its
reasonable discretion, use its personnel or that of its Affiliates.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


(b)                                PDL shall perform or cause the Transition
Services to be performed in a professional and workmanlike manner and in
accordance with all applicable Governmental Rules.


 


(c)                                 PDL and Buyer shall, as soon as practicable
following the Effective Date, form a transition services team (the “Transition
Services Team”) of [two (2) individuals] with appropriate experience
and authority, one to be designated by PDL and one to be designated by Buyer.
The Transition Services Team shall meet on a periodic basis, as reasonably
requested by Buyer or PDL, during the Term and shall address all issues related
to the performance of the Transition Services under this Agreement. The
meetings of the Transition Services Team may be conducted by telephone.


 


(d)                                Upon termination of this Agreement, PDL shall
provide Buyer with copies of all books and records (in any format, electronic
or otherwise) in PDL’s possession or under PDL’s control to the extent related
to the provision of the Transition Services under this Agreement.


 


(e)                                 PDL and Buyer shall each exercise
commercially reasonable efforts such that the Transition Services do not
materially interfere with the other party’s operations.


 


ARTICLE m REPRESENTATIONS AND

WARRANTIES


 


Section 3.1  Authority.
Each party hereby represents and warrants to the other party that (i) it
has all requisite corporate power and authority necessary to perform the
actions contemplated to be performed by it hereunder and (ii) this
Agreement has been duly executed and delivered by such party and constitutes
legal, valid and binding obligations of such party enforceable in accordance
with its terms, except as such enforceability may be subject to or limited by (A) applicable
bankruptcy, reorganization, insolvency, moratorium and similar laws affecting
the enforcement of creditors’ rights generally and (B) the rules governing
the availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in
a proceeding in law or equity.


 


ARTICLE


IV


PAYMENTS


 


Section 4.1  Invoices.
PDL shall send invoices (for fees associated, and expenses incurred, with
respect to the Transition Services, as applicable) to a single address
specified in writing by Buyer. All payments to be made hereunder shall be made
by Buyer to PDL within [****]* after receipt of an invoice by electronic funds
transmission, without any offset or deduction of any nature whatsoever, to such
account as PDL specifies in writing to Buyer with written confirmation of
payment sent by facsimile to such address as PDL specifies in writing to Buyer.
If Buyer fails to pay any invoiced amount when due and payable a service charge
may be imposed by PDL equal to [****]* of the outstanding amount for each
month or portion thereof


 






* Certain information
on this page has been omitted and filed separately with the SEC.
Confidential treatment has been requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


that such amount is overdue; provided, however,
that Buyer shall have the right to dispute in good faith any such invoice in
accordance with the provisions of Section 14.4 of the Asset
Purchase Agreement, upon which service charge shall only be payable if and to
the extent such invoice is finally determined to be correct.


 


Section 4.2  Taxes.
Except as otherwise provided in Section 2.6 of the Asset Purchase
Agreement, Buyer shall bear the cost of any Transfer Taxes, and Buyer shall
forthwith pay to PDL all such sums upon demand; provided, however,
that Buyer shall not be liable for any Taxes to the extent payable or assessed
based upon the income or worm of PDL.


 


Section 4.3  Record
Retention. PDL shall retain records and supporting documentation sufficient
to document the fees and expenses paid or payable by Buyer under this Agreement
in accordance with PDL’s then-current record retention procedures, as in effect
from time to time. Buyer and its representatives shall receive access, upon
reasonable prior written notice to PDL, to such records and supporting
documentation, during normal business hours, as may be reasonably necessary to
verify the accuracy of such fees and expenses provided, however,
that such access shall not unreasonably interfere with PDL’s business
operations. In connection therewith, all costs and expenses incurred by Buyer
related to the foregoing shall be solely borne by Buyer.


 


ARTICLE V TERM AND


TERMINATION


 


Section 5.1  Term. This
Agreement shall commence on the Effective Date and shall expire on the date set
forth on Exhibit A with respect to each such Transition Service, unless
earlier terminated in accordance with this Article V (the “Term”).


 


Section 5.2    
Termination.


 


(a)                                 PDL and Buyer shall each have the right to
terminate this Agreement with immediate effect upon written notice to the other
upon the occurrence of any of the following:


 


(i) the other party
files a petition in bankruptcy, or enters into an agreement with its creditors,
or applies for or consents to the appointment of a receiver or trustee, or
makes an assignment for the benefit of creditors, or becomes subject to
involuntary proceedings under any bankruptcy or insolvency law; or


 


(ii) the other party fails to cure any
material noncompliance with any of the terms and conditions hereof within the
time period specified in any written notice (which shall be at least thirty
(30) days) delivered to such non-compliant party.


 


(b)                                Buyer shall have the additional right to
terminate this Agreement upon

written notice delivered to PDL.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


Section 5.3    
Termination or Expiration of Agreement.


 


(a)                                 It is understood and agreed that Buyer shall
be solely responsible to perform all the work for which Transition Services
have been rendered after the earlier of the termination or expiration of this
Agreement.


 


(b)                                Termination or expiration of this Agreement shall not relieve the
parties of any obligation accruing prior to such termination. The rights and
obligations of the parties under Articles V. VII, VIII and
DC of this Agreement (as well as any applicable provisions of the Asset
Purchase Agreement) shall survive any expiration or termination of this
Agreement.


 


ARTICLE VI


FORCE MAJEURE


 


Section 6.1  Force
Majeure. If the performance by either party of any obligation under this
Agreement is prevented, restricted, interfered with or delayed by reason of any
cause beyond the reasonable control of the party liable to perform, unless
conclusive evidence to the contrary is provided, the party so affected shall,
upon giving written notice to the other party, be excused from such performance
to the extent of such prevention, restriction, interference or delay, provided
that the affected party shall use its reasonable efforts to avoid or remove
such causes of non-performance and shall continue performance with the utmost
dispatch whenever such causes are removed. When such circumstances arise, the
parties shall discuss what, if any, modification of the terms of this Agreement
may be required in order to arrive at an equitable solution.


 


ARTICLE  VII


INDEMNIFICATION


 


Section 7.1  By PDL.
PDL shall indemnify, defend and hold harmless the Buyer Indemnitee(s) (and,
as applicable, any contractors of Buyer) from and against any and all Losses
resulting from claims of third Persons (Le., Persons other than the parties
hereto and their Affiliates) to the extent such Losses arise out of or result
from the performance of the Transition Services or the failure to perform such
services, as the case may be.


 


Section 7.2  By
Buyer. Buyer shall indemnify, defend and hold harmless the Seller
Indemnitee(s) (and, as applicable, any contractors of PDL) from and
against any and all Losses resulting from claims of third Persons (i.e..
Persons other than the parties hereto and their Affiliates) to the extent such
Losses arise out of or result from (a) any breach of this Agreement by
Buyer, and (b) any act done or suffered by PDL in reliance upon any
instruction, order or other instrument given or executed by Buyer, except to
the extent mat the Losses arise from the gross negligence or willful misconduct
of PDL.


 


Section 7.3  Procedures.
In the event of any claims for indemnification made by one party (or, in the
instance of Buyer or PDL, any other Buyer Indemnitee(s) or Seller
Indemnitee(s) respectively, or its contractors or assignees, as
applicable) against the other party under this


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


Section 7.4  Exclusive
Remedy. Each party acknowledges and agrees that seeking remedy for Losses
pursuant to the indemnification provided in this Article VII shall
be the sole and exclusive remedy against the other party for the Buyer
Indemnitee(s) and the Seller Indemnitee(s), as applicable (and, as
applicable, any contractors of Buyer and PDL) from and against any and all
Losses arising out of or resulting from this Agreement or the activities
contemplated hereby.


 


ARTICLE VIII INTELLECTUAL PROPERTY


RIGHTS; ACCESS


 


Section 8.1  License.
Buyer hereby grants to PDL, and to each Affiliate and subcontractor which PDL
or any of its Affiliates may cause to perform the Transition Services, for the
Term, a royalty-free, nontransferable, non-exclusive right and license (with
the right to sublicense) under the intellectual property related to the CV
Products to perform the Transition Services as contemplated hereby.


 


Section 8.2  Access.
Buyer shall provide to PDL, and to each Affiliate and subcontractor which PDL
or any of its Affiliates may cause to perform the Transition Services, for the
Term, access to the Assets (together with any other assets or rights related to
any of the Assets or otherwise used in the development, manufacture or
commercialization of the CV Products) as reasonably necessary or appropriate to
perform the Transition Services as contemplated hereby.


 


Section 8.3  Disclosure and
Records. PDL shall disclose promptly in writing to Buyer each and every
invention, discovery, improvement, copyrightable material, computer program,
compound, micro-organism or other cell types, genetic or other biological
material, process, manufacturing technique, trade secret, formula or know-how,
whether or not patentable, discovered, conceived, made, reduced to practice or
learned by PDL in the course of (i) performing any Transition Services or (ii) PDL’s
use of Buyer’s confidential or trade secret information, equipment, supplies or
facilities (collectively, “Inventions”). PDL shall at all times create
and maintain accurate, dated and detailed records related to each and every
Invention, including without limitation records sufficient under the patent
laws of the United States to establish the date(s) of conception and
reduction to practice of potentially patentable Inventions.


 


Section 8.4  Assignment of
Inventions to Buyer. The parties agree that any intellectual property of
Buyer made available to PDL in connection with the Transition Services, and any
derivative works, additions, modifications or enhancements thereof created by
PDL pursuant to this Agreement, are and shall remain the sole property of
Buyer. To the extent that PDL uses its own or third-party intellectual property
in connection with providing the Transition Services, such intellectual property
shall remain the sole property of PDL or the third party. PDL hereby assigns to
Buyer any and all rights, title and interest in and to each and every
Invention.


 


Section 8.5  Assistance.
With respect to all Inventions assigned to and owned by Buyer pursuant to Section 8.4,
PDL shall assist Buyer in any reasonable manner to obtain and enforce patents,
copyrights, and other proprietary rights in any and all countries, and PDL
shall execute, when requested, patent applications and application assignments to
Buyer and any other lawful documents considered necessary by Buyer to carry out
the purpose of this Agreement, at


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


Buyer’s expense. PDL further agrees that the
obligations and undertakings stated in this Section 8 will continue beyond
the expiration or termination of this Agreement as set forth in Section 9.1
and the Asset Purchase Agreement, provided, that if called upon to
render such assistance after the expiration or termination of this Agreement,
then PDL will be entitled to a fair and reasonable hourly or per diem fee, as
appropriate, in addition to reimbursement of any reasonable expenses incurred
at Buyer’s request; provided, however, that in the event of a
dispute over the amount of payment due to PDL under this Section 8.5, PDL
shall without delay provide all necessary assistance requested by Buyer, and
shall submit any payment dispute regarding such assistance for later resolution
pursuant to the Asset Purchase Agreement.


 


ARTICLE DC


MISCELLANEOUS


 


Section 9.1  Incorporation.
The provisions of Article 11 (Confidentiality) and Article 14
(Miscellaneous) (except for Sections 14.1 and 14.3) of the Asset Purchase
Agreement are incorporated herein, mutatis
mutandis, by reference.


 


[SIGNATURE PAGE FOLLOWS]


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


IN WITNESS WHEREOF, the parties have caused this
Agreement to be signed by their respective representatives thereunto duly
authorized, all as of the Effective Date.


 


 


	
   

  	
  PDL BioPharma, Inc.,

  	 

	
   

  	
  a
  Delaware corporation

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
   

  	 

	
   

  	
  Name:

  	
   

  	 

	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  EKR
  Therapeutics, Inc.,

  	 

	
   

  	
  a
  Delaware corporation.

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  Name:

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  Title:

  	
   

  	 

							



 


CONFIDENTIAL TREATMENT REQUESTED


 














 


EXHIBIT G


 


[PDL
LETTERHEAD]


 


[                       ],
2008


 


 


 


Attn:


 


Via:


 


Re:     Consent to Assignment


 


Dear                              :


 


PDL BioPharma, Inc. (“PDL”) has entered
into that certain Asset Purchase Agreement dated February [                      ],
2008 (the “Asset Purchase Agreement”‘) with EKR Therapeutics, Inc.,
a Delaware corporation (“EKR”) pursuant to which PDL has agreed to sell
to EKR substantially all of PDL’s assets related to the
[                    ]  line
of business (the “Acquisition”). The Acquisition is expected to close in
[                            ],
2008.


 


In connection with the Acquisition, PDL intends to
assign to EKR that certain                                    [insert
agreement name] Agreement dated                                                          ,
        between PDL and                                                   [insert name of company] (the “Company”)
(the “Agreement”). Pursuant to Section             of
the Agreement, PDL hereby requests the consent of the Company to the assignment
of the Agreement, and all of PDL’ s rights and obligations thereunder, to EKR
in connection with the Acquisition (the “Assignment”).


 


[Note: Some agreements require EKR to expressly assume the
agreement, so this letter may have to be modified accordingly. In addition,
some agreements cover more than one compound, so the letter may have to be
modified to limit the assignment to rights and obligations related to the
particular compound]


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


Please provide your consent to the Assignment by co-signing this letter
where indicated below. By co-signing this letter you acknowledge that all of the terms and conditions of the Agreement shall
remain in full force and effect as of and following the Acquisition.
Please fax an executed copy of this letter to                                     attention
at                                     as
soon as possible, but in no event later than                                     ,
2008, and send the original via courier
to                                     attention
at the following address: DLA Piper US LLP,
153 Townsend Street, Suite 800, San Francisco, CA 94107.


 


Feel free to contact me at                                     or                                     with
any questions regarding this consent.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name/title]

  



 


ACKNOWLEDGED AND AGREED

this              day
of                              ,
2008


 


                                                                [Insert
name of company]


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
                (Please
  print name and title)

  	
   

  
					



 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


EXHIBIT H


 


ESCROW
AGREEMENT


 


This
ESCROW AGREEMENT, dated [                        ],                2008                 (“Escrow
Agreement”) is entered into by and among EKR Therapeutics, Inc., a
Delaware corporation (“Buyer”) and PDL BioPharma, Inc., a Delaware
corporation (“Seller”), and Wells Fargo Bank, National Association (“Escrow
Agent”).


 


RECITALS


 


Seller has agreed to sell to
Buyer all right, title and interest in and to certain assets in its business
pursuant to the terms of that certain Asset Purchase Agreement entered into as
of February [               ],
2008 between Seller and Buyer (the “Purchase Agreement”).


 


The Purchase Agreement provides that an amount equal
to Six Million United States Dollars ($6,000,000) shall be deposited in cash in
escrow for the purpose of providing a fund for the payment of certain amounts
that may be owed by Seller to Buyer in connection with certain obligations of
Seller under the Purchase Agreement. Accordingly, Buyer has agreed to deposit
such amount (together with any interest or other investment income earned
thereon, the “Escrow Amount”) with Escrow Agent, in compliance with the
Purchase Agreement.


 


This Escrow Agreement shall
govern the terms upon which Escrow Agent may distribute the Escrow Amount to
Buyer and Seller.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the premises set forth above and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto agree as
follows;


 


1.                                Acceptance of Appointment: Deposit of Escrow
Amount. Wells Fargo Bank,
National Association, hereby agrees to act as Escrow Agent under this Escrow
Agreement subject to the conditions set forth herein. Buyer and Seller agree to
deposit the Escrow Amount with Escrow Agent on the date hereof.


 


2.                                Claim Certificates. Buyer, from time to time on or prior to
twelve (12) months from the Closing Date (as such term is defined in the
Purchase Agreement) (the “Claim Period”), may make a claim to some or
all of the Escrow Amount (a “Claim”) by delivering to Escrow Agent a
certificate (a “Claim Certificate”) signed by an authorized signer of
Buyer stating:


 


(a)      that Buyer is entitled to payment from the
Escrow Amount under the Purchase Agreement, or reasonably expects to have a
claim for such payment;


 


(b)      the reasons
therefor, set forth in reasonable detail;


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


(c)                                  the amount of the claim by Buyer, and where
the amount of the claim is not a liquidated sum, shall be the amount reasonably
estimated by Buyer, and


 


(d)                                 that Buyer has delivered a copy of such Claim
Certificate to Seller and the date on which such copy was delivered.


 


Whenever a Claim Certificate is delivered to Escrow Agent, Escrow Agent
shall thereupon promptly notify Settler of its receipt.


 


3.                                       Disputed Claims.


 


3.1 Seller may, in good
faith, dispute or object to any claim, in whole or in part, by delivering to
Escrow Agent a notice (an “Objection Notice”) signed by an authorized
signatory of Seller within twenty (20) business days following the day on which
Buyer has delivered a Claim Certificate to Escrow Agent (such period, the “Objection
Period”), stating:


 


(a)                                  that Seller, in good faith, disputes or
objects to all or a portion of such Claim;


 


(b)                                 the reasons for such objections or dispute,
set forth in reasonable detail;


 


(c)                                  that Seller has delivered a copy of said
Objection Notice to Buyer and the date on which such copy was delivered; and


 


(d)                                 the portion of the Claim set forth in the
Claim Certificate, if any, for which there is no dispute or objection.


 


3.2                                Whenever there shall be delivered to Escrow
Agent an Objection Notice, Escrow Agent shall thereupon notify Buyer of its
receipt.


 


3.3                                Any part of a Claim being disputed by
delivery of an Objection Notice (a “Disputed Claim”) shall be resolved
by settlement negotiations or arbitration as set forth in Section 14.4 of
the Purchase Agreement. Upon any final resolution of the Disputed Claim by
mutual agreement, Buyer and Seller shall deliver to Escrow Agent a joint
written notification signed by an authorized officer of Buyer and an authorized
officer of Seller, certifying (A) mat the Disputed Claim has been resolved,
and (B) whether any part of the Escrow Amount is to be released to Buyer
(a “Dispute Resolution Notice”). Upon any final resolution of a Disputed
Claim by arbitration, a copy of the applicable arbitration award shall be
delivered to the Escrow Agent by either Buyer or Seller, accompanied by a
certification from the submitting party’s counsel, that such Disputed Claim has
been resolved (such documents, a “Final Decision”).


 


3.4                                Upon Escrow Agent’s receipt of (a) a
Dispute Resolution Notice stating that any part of the Escrow Amount is to be
released to Buyer, or (b) a Final Decision in favor of Buyer, Escrow Agent
shall promptly pay to Buyer from the Escrow Amount an


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


amount
equal to the amount stated in such document, together with any interest or
other investment income accrued thereon.


 


4.                                      Undisputed Claims. If following receipt of a Claim (i) Escrow
Agent receives from Seller written notice of consent or agreement to all or
part of such Claim, (ii) an Objection Notice objects to only part of such
Claim, or (iii) within the Objection Period, Seller shall not have
delivered to Buyer and Escrow Agent an Objection Notice with regard to such
Claim, then Escrow Agent shall promptly pay to Buyer from the Escrow Amount an
amount equal to the part of such Claim that is consented to by Seller,
uncontested, or requested by Buyer, as applicable, together with any interest
or other investment income accrued thereon.


 


5.                                      Distributions of Escrow Amount.


 


5.1                                 Any distributions (or releases) pursuant to
Sections 3,4 or 9 of this Escrow Agreement, shall be made by the Escrow Agent
by means of a wire transfer of immediately available funds to the bank account
designated by Buyer or Seller, as applicable, in “Exhibit B”.


 


5.2                                 If the Escrow Amount is not sufficient to pay
in full any amounts payable to Buyer under this Escrow Agreement, Escrow Agent
shall pay to Buyer such Escrow Amount as is available.


 


6.                                      Investment of Escrow Amount. The Escrow Amount shall be credited by
Escrow Agent and recorded in an escrow account. Escrow Agent shall be
permitted, and is hereby authorized to deposit, transfer, hold and invest all
funds received under this Escrow Agreement, including principal and interest or
other investment income in Wells Fargo Funds Money Market Deposit Account as
set forth in Exhibit A, during the period of this escrow. Escrow
Agent may invest the Escrow Amount in alternative investments in accordance
with written instructions as may from time to time be provided to Escrow Agent
and signed by both Buyer and Seller. Any interest or other investment income
received by Escrow Agent with respect to the Escrow Amount, including
reinvested interest or other investment income shall become part of the Escrow
Amount and shall be released in accordance with the provisions of this Escrow
Agreement. The parties agree that, for tax reporting purposes, all interest or
other taxable investment income earned on the Escrow Amount in any tax year
shall be taxable to Buyer.


 


The parties hereto shall on or
prior to the date hereof, provide Escrow Agent with certified tax
identification numbers by furnishing appropriate IRS forms W-9 or W-8 and other
forms and documents that Escrow Agent may reasonably request. The parties
hereto understand that if such tax reporting documentation is not so provided
to Escrow Agent, Escrow Agent may be required by the Internal Revenue Code of
1986, as amended, to withhold a portion of any interest or other investment
income earned on the Escrow Fund pursuant to this Escrow Agreement.


 


To the extent that Escrow
Agent becomes liable for the payment of any taxes in respect of income derived
from die investment of funds held or payments made hereunder, Escrow Agent
shall satisfy such liability to the extent possible from the Escrow Amount. The
parties agree to indemnify and hold Escrow Agent harmless from and against any
taxes, additions for late payment, interest, penalties and other expenses 


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


that may be assessed against Escrow Agent on or with respect to any
payment or other activities under this Escrow Agreement unless any such tax,
addition for late payment, interest, penalties and other expenses shall arise
out of or be caused by the actions of, or failure to act, by Escrow Agent.


 


7.                                      Notices. All notices, requests, demands, and other communications under this
Escrow Agreement shall be in writing and shall be deemed to have been duly
given (a) on the date of service if served personally on the party to whom
notice is to be given, (b) on the day of transmission if sent by
facsimile/email transmission to the facsimile number/email address given below,
and telephonic confirmation of receipt is obtained promptly after completion of
transmission, (c) on the day after delivery to Federal Express or similar
overnight courier or the Express Mail service maintained by the United States
Postal Service, or (d) on the fifth day after mailing, if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, return receipt requested,
to the party as follows:


 


If to Buyer:


 


EKR Therapeutics, Inc. 


Attention: Richard DeSimone


7 East Frederick Place


Cedar Knolls, NJ 07927 


Facsimile: +1 (866) 620-6848


E-mail: r.desimone@ekrtx.com


 


with a copy to (not to constitute notice):


 


Milbank, Tweed, Hadley & McCloy LLP 


Attention: Robert S, Reder, Esq.


One Chase Manhattan Plaza


New York, New York 10005


Facsimile No.: +1 (212) 822-5680


E-mail: RReder@milbank.com


 


If to Seller:


 


PDL BioPharma, Inc. 


Attention: General Counsel 

1400 Seaport Boulevard Redwood City, CA 94063


Facsimile: [                                 ]


E-mail: [                                      ]


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


with a copy to (not to constitute notice):


 


DLA Piper US LLP


Attention: Howard Clowes


153 Townsend Street, Suite 800


San Francisco, CA 94107-1957


Facsimile: 415- 659-7410


E-mail: howard.clowes@dlapiper.com


 


If to Escrow Agent:


 


Wells Fargo Bank, National Association


Corporate Trust Services


707 Wilshire Blvd., 17th Floor


Los Angeles, CA 90017


Attention: [             ]


Telephone:    
[                            ]


Facsimile:   
[                                ]


 


or
to such other address as a party shall designate by written notice to all other
parties to the Escrow Agreement.


 


8.                                      Escrow Agent’s Liability. Escrow Agent undertakes to perform such
duties and only such duties as are specifically set forth in this Escrow
Agreement, and no implied covenants or obligations shall be read into this
Escrow Agreement against Escrow Agent. In the absence of gross negligence or
willful misconduct on its part, Escrow Agent may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to Escrow Agent. Escrow Agent may act
upon any instrument, certificate, opinion or other writing believed by it
without gross negligence to be genuine, and shall not be liable in connection
with the performance by it of its duties pursuant to the provisions of the
Escrow Agreement, except for its own gross negligence or willful misconduct.
Escrow Agent may consult with counsel of its own choice and shall have full and
complete authorization and protection for any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion of such
counsel. Escrow Agent may execute powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys.


 


9.                                      Termination of Escrow.


 


9.1 Subject to Section 9.2,
within thirty (30) days after the termination of the Claim Period, Upon receipt
of signed written direction from the Buyer and Seller with the detail
calculation of the amount to be distributed, Escrow Agent shall (i) deduct
from any Escrow Amount remaining an amount equal to forty-five percent (45%) of
the interest or other taxable investment income included in such Escrow Amount,
and pay such amount to Buyer, and (ii) pay to Seller the remaining Escrow
Amount


 


CONFIDENTIAL TREATMENT REQUESTED


 














 


9.2                                 If upon termination of the Claim Period there
are any Claims or Disputed Claims pending, Escrow Agent shall continue to hold
pursuant to this Escrow Agreement such portion of the Escrow Amount that is
equal to the amount of any such Claim or Disputed Claim (including any interest
or other investment income thereon), until such time all Claims and Disputed
Claims are resolved pursuant to Section 3 or Section 4. Upon
resolution of all pending Claims or Disputed Claims, Escrow Agent shall (x) pay
to Buyer any amount to be paid pursuant to Section 3 or Section 4, as
applicable; and (y) with respect to any amount remaining thereafter, if
any, (i) deduct from such amount an amount equal to forty-five percent
(45%) of the interest or other taxable investment income included therein, and
pay such amount to Buyer, and (ii) pay to Seller the remaining amount.


 


9.3                                 All obligations of Escrow Agent hereunder
shall terminate upon the full disbursement of the Escrow Amount in accordance
with the provisions of this Escrow Agreement.


 


10.                               Reliance. The Escrow Agent shall not be liable for any action taken or not
taken by it in accordance with the direction or consent of the parties or their
respective agents, representatives, successors, or assigns. The Escrow Agent
shall not be liable for acting or refraining from acting upon any notice,
request, consent, direction, requisition, certificate, order, affidavit,
letter, or other paper or document believed by it to be genuine and correct and
to have been signed or sent by the proper person or persons, without further
inquiry into the person’s or persons’ authority. Concurrent with the execution
of this Escrow Agreement, the parties shall deliver to the Escrow Agent
authorized signers’ forms in the form of Exhibit B-l and Exhibit B-2
to this Escrow Agreement.


 


11.                               Fees and Expenses. Escrow Agent is entitled to compensation in
accordance with “Exhibit C” attached hereto and incorporated herein
by reference and shall be payable by the Buyer. The fee agreed upon for the
services rendered hereunder is intended as full compensation for the Escrow
Agent’s services as contemplated by this Escrow Agreement; provided,
however, that in the event that the conditions for the disbursement of
funds under this Escrow Agreement are not fulfilled, or the Escrow Agent
renders any material service not contemplated in this Escrow Agreement or there
is any assignment of interest in the subject matter of this Escrow Agreement,
or any material modification hereof, or if any material controversy arises hereunder,
or the Escrow Agent is made a party to any litigation pertaining to this Escrow
Agreement, or the subject matter hereof, then the Escrow Agent shall be
reasonably compensated for such extraordinary services and reimbursed for all
reasonable costs and expenses, including reasonable attorney’s fees, occasioned
by any delay, controversy, litigation or event.


 


12.                               Indemnification of Escrow Agent. Buyer and Seller both jointly and severally
hereby indemnify and hold harmless the Escrow Agent from and against, any and
all loss, liability, cost, damage and expense, including, without limitation,
reasonable counsel fees, which the Escrow Agent may suffer or incur by reason
of any action, claim or proceeding brought against the Escrow Agent arising out
of or relating in any way to this Escrow Agreement or any transaction to which
this Escrow Agreement relates unless


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


such action, claim or proceeding is the result of the willful misconduct or
gross negligence of the Escrow Agent.


 


13.                               Disagreements. If any conflict, disagreement or dispute
arises between, among, or involving any of the parties hereto concerning the
meaning or validity of any provision hereunder or concerning any other matter
relating to this Escrow Agreement, or the Escrow Agent is in doubt as to the
action to be taken hereunder, the Escrow Agent is authorized to retain the
Escrow Amount until the Escrow Agent (i) receives a final nonappealable
order of a court of competent jurisdiction or a final non-appealable
arbitration decision directing delivery of the Escrow Amount, (ii) receives
a written agreement executed by each of the parties involved in such
disagreement or dispute directing delivery of the Escrow Amount, in which event
the Escrow Agent shall be authorized to disburse the Escrow Amount in
accordance with such final court order, arbitration decision, or agreement, or (iii) files
an interpleader action in any court of competent jurisdiction, and upon the
filing thereof, the Escrow Agent shall be relieved of all liability as to the
Escrow Amount and shall be entitled to recover attorneys’ fees, expenses and
other costs incurred in commencing and maintaining any such interpleader
action. The Escrow Agent shall be entitled to act on any such agreement, court
order, or arbitration decision without further question, inquiry, or consent.


 


14.                               Resignation. Escrow Agent may resign upon 30-days advance written notice along
with payment of all fees and expenses to which it is entitled through the date
of termination to the parties hereto. If a successor escrow agent is not
appointed within the 30-day period following such notice, Escrow Agent may
petition any court of competent jurisdiction to name a successor Escrow Agent
or interplead the Escrow Amount with such court,
whereupon Escrow Agent’s duties hereunder shall terminate.


 


15.                               Successors and Assigns. Except as otherwise provided for in this
Escrow Agreement, no party hereto shall assign this Escrow Agreement or any
rights or obligations hereunder without the prior written consent of the other
parties hereto and any such attempted assignment without such prior written
consent shall be void and of no force and effect. Notwithstanding the
foregoing, Buyer may assign any or all of its rights, interests and obligations
hereunder to any financial institution providing purchase money or other
financing to Buyer from time to time as collateral security for such financing.
This Escrow Agreement shall inure to the benefit of and shall be binding upon
the successors and permitted assigns of the parties hereto.


 


16.                               Governing Law: Jurisdiction. This Escrow Agreement shall be construed,
performed, and enforced in accordance with, and governed by, the internal laws
of the State of California, without giving effect to the principles of conflict
of laws thereof.


 


17.                               Amendments: Waivers. This Escrow Agreement may be amended or
modified, and any of the terms, covenants, representations, warranties, or
conditions hereof may be waived, only by a written instrument executed by the
parties hereto, or in the case of a waiver, by the party waiving compliance.
Any waiver by any party of any conditions, or of the breach of any provision,
term, covenant, representation, or warranty contained in this Escrow Agreement,
in any one or more instances, shall not be deemed


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


to
be nor construed as further or continuing waiver of any such conditions, or of
the breach of any other provision, term, covenant, representation, or warranty
of this Escrow Agreement.


 


18.                                 Counterparts. This Escrow Agreement may be executed in
two or more counterparts, all of which taken together shall constitute one
instrument,


 


19.                                 Entire Agreement. This Escrow Agreement contains the entire
understanding among the parties hereto with respect to the escrow contemplated
hereby and supersedes and replaces all prior and contemporaneous agreements and
understandings, oral or written, with regard to such escrow.


 


20.                                 Section Headings. The section headings in this Escrow
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Escrow Agreement.


 


21.                                 Severability. In the event that any part of this Escrow
Agreement is declared by any court or other judicial or administrative body to
be null, void, or unenforceable, said provision shall survive to the extent it
is not so declared, and all of the other provisions of this Escrow Agreement
shall remain in full force and effect.


 


[SIGNATURE PAGE FOLLOWS]


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be signed the day and year first above written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  PDL BioPharma, Inc.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  EKR Therapeutics, Inc.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ESCROW
  AGENT:

  
	
   

  	
   

  
	
   

  	
  Wells Fargo Bank, National Association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


EXHIBIT I


 


LITIGATION
COOPERATION AGREEMENT


 


THIS LITIGATION COOPERATION AGREEMENT (this “Agreement”)
is made and entered into as of [                             ],
2008 (the “Effective Pate”) by and among PDL BioPharma, Inc., a
Delaware corporation (“Seller”) and EKR Therapeutics, Inc., a
Delaware corporation (“Buyer”). Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Purchase Agreement (as
defined below).


 


RECITALS


 


WHEREAS, Seller and Buyer have entered into
that certain Asset Purchase Agreement (the “Purchase Agreement”), dated
as of February [                  ],
2008, pursuant to which, among other things, Seller has agreed to sell, convey,
transfer, assign and deliver to Buyer all of Seller’s right, title and interest
in and to the Assets, and Buyer has agreed to assume the Assumed Liabilities.


 


WHEREAS, the Assets and Assumed Liabilities include,
without limitation, certain rights and obligations related to the Sun
Litigation (the “Action”).


 


NOW, THEREFORE, in consideration of the agreements
and covenants contained in the Purchase Agreement, and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions of the Purchase
Agreement:


 


AGREEMENT


 


[****]*


 


[SIGNATURE PAGE FOLLOWS]


 






* Certain information on this page has been
omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the Effective Date.


 


	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  PDL BioPharma, Inc.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  EKR Therapeutics, Inc.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


LITIGATION
MANAGEMENT AGREEMENT 

SIGNATURE PAGE


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT 1.70(A)


Product Specifications for Bulk Active
Pharmaceutical Ingredients for each CV Product


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT 1.70(B)


Product Specifications for Drug Products


 


[****]*


 






* Certain information on this page has been omitted and filed
separately with the SEC. Confidential treatment has been requested with respect
to the omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT 2.1(A)


List of Patents


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT 2.1(B)


List of Licensed IP Rights


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 














 


ATTACHMENT 2.1(C)


List of Trademark Registrations


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT 2.1(E)


List of Registrations


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT 2.1(L)


List of Tangible Assets


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT 2.1(M)


List of Domain Names


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT 2.1(P)


List of Assumed Contracts


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT
4.2(A)


List of Third Party Consents


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


ATTACHMENT 5.1(A)


List of Business Employees


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


DISCLOSURE SCHEDULES


 


[****]*


 






*
Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to the
omitted portions.


 


CONFIDENTIAL TREATMENT REQUESTED


 

















 


AMENDMENT
NO. 1


TO


ASSET
PURCHASE AGREEMENT


 


This Amendment No. 1 to
Asset Purchase Agreement is being entered into as of March 7, 2008 (this “Amendment”) by and between PDL BioPharma, Inc., a Delaware
corporation (the “Seller”) and
EKR Therapeutics, Inc., a Delaware corporation (the “Buyer”).


 


RECITALS


 


WHEREAS, the
parties hereto entered into an Asset Purchase Agreement, dated as of February 4,
2008 (the “Purchase Agreement”; capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Purchase Agreement);


 


WHEREAS, the
parties hereto desire to amend the Purchase Agreement in accordance with Section 14.7
thereof and in the manner set forth herein.


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein, the
parties hereto agree as follows:


 


1.             Section 1 of
the Purchase Agreement is hereby amended by adding the following definitions,
and the other definitions contained in Section 1 of the Purchase Agreement
are correspondingly re-numbered (together with any internal cross-references in
the Purchase Agreement) to reflect the addition of the following definitions:


 


“1.20       “Centocor Agreement” shall mean
that certain Asset Purchase Agreement entered into as of January 31, 2005
between PDL BioPharma, Inc. (as successor in interest to ESP Pharma, Inc.)
and  Centocor, Inc. (“Centocor”),
as amended by Amendment No. 1 effective June 24, 2005, Amendment No. 2
effective September 14, 2005 and Amendment No. 3 entered into as of September 19,
2007.”


 


“1.21       “Centocor Licensed IP Rights”
shall have the meaning given in Section 10.17.”


 


“1.22       “Centocor Sublicense” shall mean
the sublicense to the Licensed Patent Rights (as that term is defined in the
Centocor Agreement) granted to Seller by Centocor pursuant to Section 2.2
of the Centocor Agreement.”


 


“1.70       “PDL/EKR – Centocor Sublicense”
shall have the meaning given in Section 10.17.”


 


CONFIDENTIAL TREATMENT  REQUESTED


 

















 


2.             The first sentence
in paragraph (p) of Section 2.1 of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following new sentence which
shall read in its entirety as follows:


 


“Upon Closing, Seller
shall sell, transfer, assign, convey and deliver or shall cause to be sold,
transferred, assigned, conveyed and delivered to Buyer, all rights and benefits
of Seller in existence as of the Closing Date or arising after the Closing Date
under the contracts listed in Attachment 2.1(p) (or, in the case of
contracts identified in Attachment 2.1(p) as being assigned to
Buyer in part, under the applicable portion of such contracts so assigned) (the
“Assumed Contracts”), including any rights to Intellectual Property.”


 


3.             Paragraph
(v) of Section 2.1 of the Purchase Agreement is hereby deleted in its
entirety and replaced with the following new sentence which shall read in its
entirety as follows:


 


“(v)         Packaging Inventory.  Upon Closing, Seller shall sell, transfer,
assign, convey and deliver or shall cause to be sold, transferred, assigned,
conveyed and delivered to Buyer, all packaging material existing or in the
process of manufacture pursuant to a contract with Seller or its Affiliates for
the Marketed Products, including all package labels and product inserts used in
connection with the Marketed Products owned or controlled by Seller or its
Affiliates as of the Closing (the “Packaging Inventory”).”


 


4.             Paragraph (a) of
Section 2.3 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following new paragraph (a) which shall read in its
entirety as follows:


 


“(a)         all Liabilities of Seller under the
Assumed Contracts, but only to the extent such Liabilities arise from any
event, circumstance or condition occurring after the Closing Date (but
excluding, in the case of each Assumed Contract that is identified in Attachment
2.1(p) as being assigned to Buyer in part, all Liabilities of Seller
that relate to or arise out of the portion of such partially assigned contract
retained by Seller);”


 


5.             Section 2.3 of
the Purchase Agreement is hereby amended by adding a new paragraph (h) following
paragraph (g) of Section 2.3, which shall read in its entirety as follows:


 


“(h)         all Liabilities of Seller under the
Centocor Agreement, but only to the extent such Liabilities arise from any
event, circumstance or condition occurring after the Closing Date and excluding
any Liabilities that arise as a result of actions taken or omitted by Seller
after the Closing but prior to the date, if any, on which consent for the
assignment thereof is obtained, 


 


CONFIDENTIAL TREATMENT  REQUESTED


 

















 


unless such actions or
omissions are at the request or direction of Buyer or pursuant to a consent
granted by Buyer,.”


 


6.             The fifth sentence
of Section 2.7 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following new sentence which shall read in its entirety
as follows:


 


“If any such consent
shall not be obtained, Seller shall cooperate with Buyer in any reasonable
arrangement designed to provide for Buyer the benefits intended to be assigned
to Buyer under the relevant Assumed Contract, Intellectual Property or
Registration, including enforcement at the cost and for the account of Buyer of
any and all rights of Seller against the other party thereto arising out of the
breach or cancellation thereof by such other party or otherwise; provided that,
in connection with receiving any such benefits, Buyer shall assume the
Liabilities of Seller thereunder, but only to the extent such Liabilities (x) arise
from any event, circumstance or condition occurring after the Closing Date and (y) relate
to the benefits received by Buyer, and excluding any Liabilities that arise as
a result of actions taken or omitted by Seller after the Closing but prior to
the date, if any, on which consent for the assignment thereof is obtained,
unless such actions or omissions are at the request or direction of Buyer or
pursuant to a consent granted by Buyer.”


 


7.             Section 2.7 of
the Purchase Agreement is hereby amended by adding the following sentence to
the end of Section 2.7:


 


“With respect to each
Assumed Contract that is not assigned to Buyer on the Closing Date as a result
of a required consent or waiver not having been obtained, until such time as it
is reasonably determined by Buyer and Seller that such required consent or
waiver cannot be obtained, Seller shall not, without the prior written consent
of Buyer, (i) breach, amend, modify, terminate or waive any provision of
such contract or agreement in any manner that would have an adverse effect on
Buyer’s rights or benefits under such Assumed Contract or the Assets, or (ii) pledge,
sell or otherwise dispose of (by operation of law or otherwise) such Assumed
Contract or any rights or benefits thereunder.”


 


8.             Section 10.1
of the Purchase Agreement is hereby amended by adding new paragraph (d) which
shall read in their entirety as follows:


 


“(d)         With respect to each Assumed Contract
that is comprised of a partial assignment of a contract or other agreement, or
of Seller’s rights thereunder, Seller (i) shall not, without the prior
written consent of Buyer, amend, modify, terminate or waive any provision of
such contract or agreement in any manner that would have an adverse effect on
Buyer’s 


 


CONFIDENTIAL TREATMENT  REQUESTED


 

















 


rights or benefits under
such Assumed Contract, and (ii) shall provide Buyer with (x) prompt
written notice of any violation or breach of, or default under, any such
Assumed Contract of which it has knowledge to the extent that any such
violation, breach or default could in Seller’s good faith judgment be
reasonably expected to have an adverse effect on Buyer rights or benefits under
such partially assigned contract or other agreement, and (y) a copy of any
written notice that it receives in respect of any violation, breach or default
of any such Assumed Contract to the extent that any such violation, breach or
default could in Seller’s good faith judgment be reasonably expected to have an
adverse effect on Buyer rights or benefits under such partially assigned
contract or other agreement.”


 


9.             Section 10.12
of the Purchase Agreement is hereby deleted in its entirety and replaced with
the following new section which shall read in its entirety as follows:


 


“10.12     Promotion, Marketing and Labeling.  Promptly after the Registrations have been
transferred to Buyer and subject to applicable regulatory approvals, all Buyer
advertising and promotional materials for the Marketed Products shall identify
Buyer as the marketer of the Marketed Products in the applicable Territory, in
such form as Buyer shall determine. Promptly after the Registrations have been
transferred to Buyer, Buyer shall make such changes in the package insert,
Marketed Products labeling and packaging as may be required to reflect Buyer as
the marketer of the Marketed Products in the applicable Territory, including
making all required FDA and any other regulatory filings in connection
therewith. Promptly after the Registrations have been transferred to Buyer,
Seller shall file with the FDA a notice that Buyer is the marketer and
distributor of the Marketed Products in the applicable Territory. To the extent
that the FDA requests additional information or meetings regarding Buyer’s
responsibilities as marketer and distributor of the Marketed Products in the
applicable Territory, Buyer shall respond to the FDA at its own expense and
through its own personnel. Seller is not required to change the Marketed
Products’ labeling or package insert, or packaging for the Drug Products or the
Packaged Products.  With respect to the
Product Inventory purchased by Buyer hereunder, Buyer shall be permitted (i) until
[****]* in the case of the [****]* other than [****]*, (ii) until [****]*
in the case of [****]*, (iii) until [****]* in the case of the [****]*, to
sell Marketed Products from the Product Inventory as labeled and packaged prior
to the Closing Date, and with respect to the Packaging Inventory purchased by
Buyer hereunder, Buyer shall be permitted to use such Packaging 


 






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CONFIDENTIAL TREATMENT  REQUESTED


 

















 


Inventory through the
same dates, as applicable, all without regard to whether the Marketed Products
references Seller or includes any intellectual property rights Seller has in
Trademarks that may be included on the labels and packaging but not conveyed to
Buyer pursuant to this Agreement, provided, that all such Product
Inventory and Packaging Inventory shall be held, maintained, distributed and
sold in accordance with the Registrations and all applicable laws.  With respect to Cardene PMB Product
packaging, Buyer shall be permitted to manufacture and use packaging bearing
Seller trademarks until [****]* that is substantially the same as the packaging
used for testing the Cardene PMB Product. 
Without the prior written approval from Seller, which approval shall not
be unreasonably withheld or delayed, Buyer shall not use or distribute any
marketing, promotional or advertising copy related to the [****]* has been
transferred to Buyer; provided, however, that nothing herein shall require any
approval from Seller for Buyer to issue invoices for, and collect revenues
from, sales of the [****]* from and after the Closing Date.”


 


10.           The Purchase
Agreement is hereby amended by adding a new Section 10.17, which shall
read in its entirety as follows:


 


“10.17     Centocor Agreement.  Upon Closing, Seller hereby grants Buyer a
perpetual, paid up, irrevocable, non-terminable, royalty free, unlimited (other
than as provided in the Centocor Agreement) sublicense under the Centocor
Sublicense in the Territory (as that term is defined in the Centocor
Agreement), with the right to further sublicense, without the consent of
Seller, such sublicense and any other sublicense thereunder being sole and
exclusive for use in the Business (as that term is defined in the Centocor
Agreement) (the “PDL/EKR - Centocor Sublicense”); provided that
if after the Closing Buyer and Seller obtain the consent of Centocor to the assignment
of the Centocor Agreement to Buyer, upon obtaining such consent (a) the
PDL/EKR - Centocor Sublicense shall automatically terminate, (b) the
Centocor Agreement shall be deemed to be an Assumed Contract and the Centocor
Licensed Patent Rights shall be deemed to be Licensed IP Rights (the “Centocor
Licensed IP Rights”) hereunder, and (c) such consent shall constitute
a transfer and assignment to Buyer of the Centocor Agreement and Centocor
Licensed IP Rights with immediate effect. 
Buyer acknowledges and agrees that the PDL/EKR - Centocor Sublicense
shall be subject to all of the terms and conditions of the Centocor Agreement,
including the provisions of Section 2.2 thereof.  Nothing contained in this Agreement shall be
deemed to convey to Buyer any rights or benefits under the Centocor Sublicense
other than those of Seller contained in the Centocor Sublicense.  So long as the PDL/EKR - Centocor


 






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treatment has been requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT  REQUESTED


 

















 


Sublicense shall remain
in effect, Seller shall not, without the prior written consent of Buyer, (i) breach,
amend, modify, terminate or waive any provision of the Centocor Agreement in
any manner that would have an adverse effect on Buyer’s rights or benefits
under the Centocor Agreement, or (ii) pledge, sell or otherwise dispose of
(by operation of law or otherwise) the Centocor Agreement or any rights or
benefits thereunder. This Section 10.17 shall survive the Closing
indefinitely unless otherwise terminated as set forth above.”


 


11.           Section 14.9
of the Purchase Agreement is hereby amended by adding the following language
immediately after the word “sources” and before the period at the end of such
Section:


 


“[****]*”


 


12.           Attachment 2.1(B) to
the Purchase Agreement is hereby deleted in its entirety and replaced with
Attachment 2.1(b) attached hereto.


 


13.           Attachment 2.1(P) to
the Purchase Agreement is hereby deleted in its entirety and replaced with
Attachment 2.1(p) attached hereto.


 


14.           Attachment 4.2(A) of
the Purchase Agreement is hereby deleted in its entirety and replaced with a
new Attachment 4.2(a) attached hereto.


 


15.           Where necessary to
give effect to the terms of this Amendment, all reference in the Purchase
Agreement to the “Agreement” shall be deemed to refer to the Purchase Agreement
as amended hereby.


 


16.           All other provisions
of the Purchase Agreement shall be unmodified and shall remain in full force
and effect, in accordance with its terms.


 


17.           If any provision of
this Amendment is held by a court of competent jurisdiction to be invalid or
unenforceable, it shall be modified, if possible, to the minimum extent
necessary to make it valid and enforceable or, if such modification is not
possible, such provision shall be stricken and the remaining provisions shall
remain in full force and effect.


 


18.           This Amendment shall
be deemed to have been made in the State of California and its form, execution,
validity, construction and effect shall be determined in accordance with the
laws of the State of California, without giving effect to the principles of
conflicts of law thereof.


 


19.           This Amendment and
the rights and obligations hereunder shall be binding upon and inure to the
benefit of the parties hereto, their respective 


 






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treatment has been requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT  REQUESTED


 

















 


successors and
assigns, but this Amendment shall not be assignable by either party hereto
without the express written consent of the other party hereto which will not be
unreasonably withheld, provided, however, that Buyer may merge or consolidate
with, or assign any or all of its rights, interests and obligations hereunder
to, a direct or indirect wholly-owned subsidiary of Buyer, provided that no
such merger, consolidation or assignment shall relieve Buyer of its obligations
hereunder, and Buyer may assign any or all of its rights and interests
hereunder as collateral to one or more of its financing sources.


 


20.           This Amendment may
be executed in two or more counterparts, each of which shall be deemed an
original, but which together shall constitute one and the same instrument.  Any executed counterpart delivered by
facsimile or other means of electronic transmission shall be deemed an original
for all purposes.


 


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IN WITNESS WHEREOF, the
parties, through their authorized officers, have duly executed this Amendment
as of the date first written above.


 


	
   

  	
  PDL
  BioPharma, Inc.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ L. Patrick Gage

  
	
   

  	
  Name: 

  	
  L. Patrick Gage

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Andrew Guggenhime

  
	
   

  	
  Name: 

  	
  Andrew Guggenhime

  
	
   

  	
  Title:

  	
  Senior Vice President
  and

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  EKR
  Therapeutics, Inc.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Howard Weisman

  
	
   

  	
  Name:

  	
  Howard Weisman

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive

  
	
   

  	
   

  	
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard
  DeSimone

  
	
   

  	
  Name:

  	
  Richard DeSimone

  
	
   

  	
  Title:

  	
  Chief Financial
  Officer

  
					



 


AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT


SIGNATURE PAGE


 


CONFIDENTIAL TREATMENT  REQUESTED


 

















 


ATTACHMENT 2.1(B)


List of Licensed IP
Rights


 


[****]*


 






* Certain information on this page has been omitted and filed
separately with the SEC.  Confidential
treatment has been requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT  REQUESTED


 

















 


ATTACHMENT 2.1(P)


List of Assumed Contracts


 


[****]*


 






* Certain information on this page has been omitted and filed
separately with the SEC.  Confidential
treatment has been requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT  REQUESTED


 

















 


ATTACHMENT 4.2(A)


List of Third Party
Consents


 


[****]*


 






* Certain information on this page has been omitted and filed
separately with the SEC.  Confidential
treatment has been requested with respect to the omitted portions.


 


CONFIDENTIAL TREATMENT  REQUESTED