**Exhibit 10.67**

 

**REGISTRATION RIGHTS AGREEMENT**

 

**among**

 

**CV THERAPEUTICS, INC.,**

 

**CITIGROUP GLOBAL MARKETS INC.,**

**CIBCWORLD MARKETS CORP., DEUTSCHE BANK SECURITIES INC., FIRST**

**ALBANY CORPORATION, NEEDHAM & COMPANY, INC. and SG COWEN**

**SECURITIES CORPORATION**

 

**Dated June 18, 2003**

 

Registration Rights Agreement (this “Agreement”), dated as of June 18, 2003, among CV Therapeutics, Inc., a Delaware corporation(together with any successor entity, the “Issuer”), Citigroup Global Markets Inc. (“Citigroup”), CIBC World Markets Corp., Deutsche Bank Securities Inc., First Albany Corporation, Needham & Company, Inc. and SGCowen Securities Corporation (collectively, the “Initial Purchasers”). 

 

Pursuant to the Purchase Agreement, dated June 13, 2003, between the Issuer and the Initial Purchasers (the “Purchase Agreement”), the Initial Purchasers have agreed to purchase from the Issuer up to$100,000,000 ($125,000,000 if the Initial Purchasers’ option is exercised in full) in aggregate principal amount of 2.0% Senior Subordinated Convertible Debentures due 2023 (the “Debentures”). The Debentures will be convertibleinto fully paid, nonassessable shares of common stock, par value $.001 per share, of the Issuer (the “Common Stock”) on the terms, and subject to the conditions, set forth in the Indenture (as defined herein). To induce the InitialPurchasers to purchase the Debentures, the Issuer has agreed to provide the registration rights set forth in this Agreement pursuant to the Purchase Agreement. 

 

The parties hereby agree as follows: 

 

1. Definitions. As used in this Agreement, the following capitalized terms shall have the following meanings: 

 

Advice: As defined in Section 4(c)(ii) hereof. 

 

Agreement: As defined in the preamble hereto. 

 

Business Day: A day other than a Saturday or Sunday or any federalholiday in the United States. 

 

Citigroup: As defined inthe preamble hereto. 

 

Commission: Securities andExchange Commission. 

 

Common Stock: As defined in thepreamble hereto. 

Damages Payment Date: Each Interest Payment Date. For purposes of this Agreement, if no Debenturesare outstanding, “Damages Payment Date” shall mean each May 16 and November 16. 

 

Debentures: As defined in the preamble hereto. 

 

Effectiveness Period: As defined in Section 2(a)(iii) hereof. 

 

Effectiveness Target Date: As defined in Section 2(a)(ii) hereof. 

 

Exchange Act: Securities Exchange Act of 1934, as amended. 

 

Holder: A Person who owns, beneficially or otherwise, TransferRestricted Securities. 

 

Indenture: The Indenture, datedas of June 18, 2003, between the Issuer and Wells Fargo Bank Minnesota, N.A., as trustee, pursuant to which the Debentures are to be issued, as such Indenture is amended, modified or supplemented from time to time in accordance with the termsthereof. 

 

Initial Purchasers: As defined in the preamblehereto. 

 

Interest Payment Date: As defined in theIndenture. 

 

Issuer: As defined in the preamble hereto.

 

Liquidated Damages: As defined in Section 3(a) hereof.

 

Majority of Holders: Holders holding over 50% of theaggregate principal amount of Debentures outstanding; provided, however, that, for purpose of this definition, a holder of shares of Common Stock which constitute Transfer Restricted Securities and were issued upon conversion of theDebentures shall be deemed to hold an aggregate principal amount of Debentures (in addition to the aggregate principal amount of Debentures held by such holder) equal to the aggregate principal amount of Debentures converted by such Holder into suchshares of Common Stock. 

 

NASD: National Association ofSecurities Dealers, Inc. 

 

Person: An individual,partnership, corporation, unincorporated organization, trust, joint venture or a government or agency or political subdivision thereof. 

 

Prospectus: The prospectus included in a Shelf Registration Statement, as amended or supplemented by any prospectus supplement and by all otheramendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus. 

 

Purchase Agreement: As defined in the preamble hereto. 

 

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Questionnaire Deadline: As defined in Section 2(b) hereof. 

 

Record Holder: With respect to any Damages Payment Date, each Personwho is a Holder on the record date with respect to the Interest Payment Date on which such Damages Payment Date shall occur. In the case of a Holder of shares of Common Stock issued upon conversion of the Debentures, “Record Holder” shallmean each Person who is a Holder of shares of Common Stock which constitute Transfer Restricted Securities on the May 2 or November 2 immediately preceding the Damages Payment Date. 

 

Registration Default: As defined in Section 3(a) hereof. 

 

Sale Notice: As defined in Section 4(e) hereof. 

 

Securities Act: Securities Act of 1933, as amended. 

 

Shelf Filing Deadline: As defined in Section 2(a)(i) hereof.

 

Shelf Registration Statement: As defined in Section2(a)(i) hereof. 

 

Suspension Period: As defined inSection 4(b)(i) hereof. 

 

TIA: Trust Indenture Act of1939, as in effect on the date the Indenture is qualified under the TIA. 

 

Transfer Restricted Securities: Each Debenture and each share of Common Stock issued upon conversion of Debentures until the earlier of: 

 

(i) the date on which such Debenture or such share of Common Stock issued upon conversion has beeneffectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement; 

 

(ii) the date on which such Debenture or such share of Common Stock issued upon conversion is transferred in compliance with Rule 144under the Securities Act or may be sold or transferred pursuant to Rule 144(k) under the Securities Act (or any other similar provision then in force); or 

 

(iii) the date on which such Debenture or such share of Common Stock issued upon conversion ceases to be outstanding (whether as a resultof redemption, repurchase and cancellation, conversion or otherwise). 

 

Underwritten Registration or Underwritten Offering: A registration in which securities of the Issuer are sold to an underwriter for reoffering to the public. 

 

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2. Shelf Registration. 

 

(a) The Issuer shall: 

 

(i) not later than 120 days after the date hereof (the “Shelf Filing Deadline”), cause to be filed a registrationstatement pursuant to Rule 415 under the Securities Act (the “Shelf Registration Statement”), which Shelf Registration Statement shall provide for resales of all Transfer Restricted Securities held by Holders that have provided theinformation required pursuant to the terms of Section 2(b) hereof; 

 

(ii) use its best efforts to cause the Shelf Registration Statement to be declared effective by the Commission as promptly as practicable, but in no event later than 210 days after the date hereof (the“Effectiveness Target Date”); and 

 

(iii) use its best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 4(b) hereof to the extent necessary to ensure that (A) it is available for resalesby the Holders of Transfer Restricted Securities entitled to the benefit of this Agreement and (B) conforms with the requirements of this Agreement and the Securities Act and the rules and regulations of the Commission promulgated thereunder asannounced from time to time for a period (the “Effectiveness Period”) of: 

 

(1) two years following the last date of original issuance of Debentures; or 

 

(2) such shorter period that will terminate when (x) all of the Holders of Transfer Restricted Securities are able to sell all Transfer RestrictedSecurities immediately without restriction pursuant to Rule 144(k) under the Securities Act or any successor rule thereto, (y) when all Transfer Restricted Securities have ceased to be outstanding (whether as a result of redemption, repurchase andcancellation, conversion or otherwise) or (z) all Transfer Restricted Securities registered under the Shelf Registration Statement have been sold. 

 

(b) No Holder may include any of its Transfer Restricted Securities in the Shelf Registration Statement pursuant to this Agreement unless such Holderfurnishes to the Issuer in writing, prior to or on the 20th Business Day after receipt of a request therefor (the“Questionnaire Deadline”), such information as the Issuer may reasonably request, including the information specified in the form of questionnaire attached hereto as Exhibit A, for use in connection with the ShelfRegistration Statement or the Prospectus or preliminary Prospectus included therein and in any application to be filed with or under state securities laws. 

 

In connection with all such requests for information from Holders in addition to that set forth in Exhibit A, the Issuer shall notify such Holdersof the requirements set forth in the preceding sentence. No Holder shall be entitled to Liquidated Damages pursuant to Section 3 hereof unless such Holder shall have provided all such requested information prior to or on the Questionnaire Deadline.

 

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3. Liquidated Damages. 

 

(a) If: 

 

(i) the Shelf Registration Statement is not filed with the Commission prior to or on the Shelf Filing Deadline; 

 

(ii) the Shelf Registration Statement has not been declaredeffective by the Commission prior to or on the Effectiveness Target Date; 

 

(iii) subject to the provisions of Section 4(b)(i) hereof, the Shelf Registration Statement is filed and declared effective but, during the Effectiveness Period, shall thereafter cease to be effective or fail to beusable for its intended purpose without being succeeded within five Business Days by a post-effective amendment to the Shelf Registration Statement or a report filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the ExchangeAct that cures such failure and, in the case of a post-effective amendment, is itself immediately declared effective; or 

 

(iv) prior to or on the 45th or 60th day, as the case may be, of any Suspension Period, such suspension has not beenterminated 

 

(each such event referred to in foregoing clauses (i) through (iv),a “Registration Default”), the Issuer hereby agrees to pay liquidated damages (“Liquidated Damages”) with respect to the Transfer Restricted Securities from and including the day following the Registration Defaultto but excluding the day on which the Registration Default has been cured: 

 

(A) in respect of the Debentures, to each holder of Debentures, (x) with respect to the first 90-day period during which a Registration Default shall have occurred and be continuing, in an amount per year equal to anadditional 0.25% of the principal amount of the Debentures and (y) with respect to the period commencing on the 91stday following the day the Registration Default shall have occurred and be continuing, in an amount per year equal to an additional 0.50% of the principal amount of the Debentures; provided that in no event shall Liquidated Damages accrue at a rateper year exceeding 0.50% of the principal amount of the Debentures; and 

 

(B) In respect of any shares of Common Stock, to each holder of shares of Common Stock issued upon conversion of Debentures, (x) with respect to the first 90-day period in which a Registration Default shall haveoccurred and be continuing, in an amount per year equal to 0.25% of the principal amount of the converted Debentures and (y) with respect to the period commencing the 91st day following the day the Registration Default shall have occurred and be continuing, in an amount per year equal to 0.50% of the principal amount of theconverted Debentures; provided, however, that in no event shall Liquidated Damages accrue at a rate per year exceeding 0.50% of the principal amount of the converted Debentures. 

 

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(b) All accrued Liquidated Damages shall be paid in arrears to Record Holders by the Issuer on eachDamages Payment Date by wire transfer of immediately available funds or by federal funds check. Following the cure of all Registration Defaults relating to any particular Debenture or share of Common Stock, the accrual of Liquidated Damages withrespect to such Debenture or share of Common Stock will cease. 

 

All obligations of the Issuer set forth in this Section 3 that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all suchobligations with respect to such Transfer Restricted Security shall have been satisfied in full. 

 

The Liquidated Damages set forth above shall be the exclusive monetary remedy available to the Holders for such Registration Default. 

 

4. Registration Procedures. 

 

(a) In connection with the Shelf Registration Statement, the Issuer shallcomply with all the provisions of Section 4(b) hereof and shall use its best efforts to effect such registration to permit the resale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof,and pursuant thereto, shall as expeditiously as possible prepare and file with the Commission a Shelf Registration Statement relating to registration on any appropriate form under the Securities Act. 

 

(b) In connection with the Shelf Registration Statement and any Prospectusrequired by this Agreement to permit the resale of Transfer Restricted Securities, the Issuer shall: 

 

(i) Subject to any notice by the Issuer in accordance with this Section 4(b) of the existence of any fact or event of the kind describedin Section 4(b)(iii)(D), use its best efforts to keep the Shelf Registration Statement continuously effective during the Effectiveness Period. Upon the occurrence of any event that would cause the Shelf Registration Statement or the Prospectuscontained therein (A) to contain a material misstatement or omission or (B) not be effective and usable for resale of Transfer Restricted Securities during the Effectiveness Period, the Issuer shall file promptly an appropriate amendment to theShelf Registration Statement or a report filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A), correcting any such misstatement or omission, and, in the case of either clause (A) or(B), use its best efforts to cause any such amendment to be declared effective and the Shelf Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable thereafter. Notwithstanding theforegoing, the Issuer may suspend the effectiveness of the Shelf Registration Statement by written notice to the Holders for a period not to exceed an aggregate of 45 days in any 90-day period (each such period, a “SuspensionPeriod”) if: 

 

(x) an event occurs andis continuing as a result of which the Shelf Registration Statement would, in the Issuer’s reasonable judgment, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to makethe statements therein not misleading; and 

 

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(y) the Issuer reasonably determines that the disclosure of such event at such time wouldhave a material adverse effect on the business of the Issuer (and its subsidiaries, if any, taken as a whole); provided, however, that in the event the disclosure relates to a previously undisclosed proposed or pending materialbusiness transaction, the disclosure of which would impede the Issuer’s ability to consummate such transaction, the Issuer may extend a Suspension Period from 45 days to 60 days; and providedfurther, that Suspension Periods shallnot exceed an aggregate of 90 days in any 360-day period. 

 

(ii) Prepare and file with the Commission such post-effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement effective during the Effectiveness Period;cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rules 424 and 430A under theSecurities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Shelf Registration Statement during the applicable period in accordance with the intended methodor methods of distribution by the sellers thereof set forth in the Shelf Registration Statement or Prospectus supplement. 

 

(iii) Advise the selling Holders that have provided the information required by Section 4(d) of this Agreement, Citigroup, asrepresentative of the Initial Purchasers, and the underwriter(s), if any, promptly (but in any event within five Business Days) and, if requested by such Persons, confirm such advice in writing: 

 

(A) with respect to the Shelf Registration Statement or anypost-effective amendment thereto, when the same has become effective, and when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, 

 

(B) of any request by the Commission for amendments to the Shelf Registration Statement or amendments orsupplements to the Prospectus or for additional information relating thereto, 

 

(C) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement under the Securities Act or of the suspension by any state securities commission of thequalification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, or 

 

(D) of the existence of any fact or the happening of any event, during the Effectiveness Period, that makesany statement of a material fact made in the Shelf Registration Statement or the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes inthe Shelf Registration Statement or the Prospectus in order to make the statements therein not misleading. 

 

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If at any time the Commission shall issue any stop order suspending the effectiveness of the ShelfRegistration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue Sky laws,the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. 

 

(iv) Furnish to each of the selling Holders that have provided the information required by Section 4(d) of this Agreement, Citigroup, asrepresentative of the Initial Purchasers and each of the underwriter(s), if any, before filing with the Commission, a copy of the Shelf Registration Statement and copies of any Prospectus included therein or any amendments or supplements to theShelf Registration Statement or Prospectus (other than documents incorporated by reference after the initial filing of the Shelf Registration Statement), which documents will be subject to the review of such Holders, Citigroup as representative ofthe Initial Purchasers and underwriter(s), if any, for a period of at least ten Business Days, and the Issuer will not file any Shelf Registration Statement or Prospectus or any amendment or supplement to the Shelf Registration Statement orProspectus (other than documents incorporated by reference) to which a selling Holder of Transfer Restricted Securities covered by the Shelf Registration Statement, Citigroup, as representative of the Initial Purchasers, or the underwriter(s), ifany, shall reasonably object within five Business Days after the receipt thereof. A selling Holder, Citigroup, as representative of the Initial Purchasers, or underwriter, if any, shall be deemed to have reasonably objected to such filing if theShelf Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission. Notwithstanding the foregoing, the Issuer shall not be required to furnish the selling Holderswith any amendment or supplement to the Shelf Registration Statement or Prospectus filed solely to reflect changes to the amount of Debentures held by any particular Holder at the request of such Holder or immaterial revisions to the informationcontained therein. 

 

(v) If the selling Holderspropose to make an underwritten public offering of the Transfer Restricted Securities, make available at reasonable times for inspection by one or more representatives of the selling Holders, designated in writing by a Majority of Holders whoseTransfer Restricted Securities are included in the Shelf Registration Statement, any underwriter participating in any distribution pursuant to the Shelf Registration Statement and any attorney or accountant retained by such selling Holders or any ofthe underwriter(s), all financial and other records, pertinent corporate documents and properties of the Issuer as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the Issuer’sofficers, directors, managers and employees to supply all information reasonably requested by any such representative or representatives of the selling Holders, underwriter, attorney or accountant in connection with the Shelf Registration Statementafter the filing thereof and before its effectiveness; provided, however, that any information designated by the Issuer as confidential at the time of delivery of such information shall be kept confidential by the recipient thereof.

 

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(vi) If requested by any selling Holders, Citigroup, as representative of the InitialPurchasers, or the underwriter(s), if any, promptly incorporate in the Shelf Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders, Citigroup, asrepresentative of the Initial Purchasers, and such underwriter(s), if any, may reasonably request to have included therein, including, without limitation: (1)information relating to the “Plan of Distribution” of the Transfer RestrictedSecurities, (2) information with respect to the principal amount of Debentures or number of shares of Common Stock being sold to such underwriter(s), (3) the purchase price being paid therefor and (4) any other terms of the offering of the TransferRestricted Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after the Issuer is notified of the matters to be incorporated in suchProspectus supplement or post-effective amendment. Notwithstanding the foregoing, following the effective date of the Shelf Registration Statement, the Issuer shall not be required to file more than one such supplement or post-effective amendment toreflect changes in the amount of Debentures held by any particular Holder at the request of such Holder in any 30-day period. 

 

(vii) Furnish to each selling Holder, Citigroup, as representative of the Initial Purchasers, and each of the underwriter(s), if any,without charge, at least one copy of the Shelf Registration Statement, as first filed with the Commission, and of each amendment thereto (and any documents incorporated by reference therein or exhibits thereto (or exhibits incorporated in suchexhibits by reference) as such Person may request). 

 

(viii) Deliver to each selling Holder, Citigroup, as representative of the Initial Purchasers, and each of the underwriter(s), if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and anyamendment or supplement thereto as such Persons reasonably may request; subject to any notice by the Issuer in accordance with this Section 4(b) of the existence of any fact or event of the kind described in Section 4(b)(iii)(D), the Issuer herebyconsents to the use of the Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by theProspectus or any amendment or supplement thereto. 

 

(ix) If an underwriting agreement is entered into and the registration is an Underwritten Registration, the Issuer shall: 

 

(A) upon request, furnish to each selling Holder and the underwriter(s), if any, in such substance and scope as they may reasonablyrequest and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of closing of any sale of Transfer Restricted Securities in an Underwritten Registration: (1) a certificate, dated the date of suchclosing, signed by the Chief Financial Officer of the Issuer confirming, as of the date thereof, the matters set forth in Section 6(d) of the Purchase Agreement and such other matters as such parties may reasonably request; (2) opinions, each datedthe date of such closing, of counsel to the Issuer covering such of the matters set forth in the exhibits to the 

 

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Purchase Agreement referred to in Section 6(a) and 6(b) thereof as are customarily covered in legal opinions to underwriters in connection with primaryunderwritten offerings of securities; and (3) customary comfort letters, dated the date of such closing, from the Issuer’s independent certified public accountants (and from any other accountants whose report is contained or incorporated byreference in the Shelf Registration Statement), in the customary form and covering matters of the type customarily covered in comfort letters to underwriters in connection with primary underwritten offerings of securities; 

 

(B) set forth in full in the underwriting agreement, if any,indemnification provisions and procedures which provide rights no less protective than those set forth in Section 6 hereof with respect to all parties to be indemnified; and 

 

(C) deliver such other documents and certificates as may be reasonably requested by such parties to evidencecompliance with clause (A) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the selling Holders pursuant to this clause (ix). 

 

(x) Before any public offering of Transfer RestrictedSecurities, cooperate with the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration and qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of suchjurisdictions as the selling Holders or underwriter(s), if any, may reasonably request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered bythe Shelf Registration Statement; provided, however, that the Issuer shall not be required (A) to register or qualify as a foreign corporation or a dealer of securities where it is not now so qualified or to take any action that wouldsubject it to the service of process in any jurisdiction where it is not now so subject or (B) to subject itself to taxation in any such jurisdiction if they are not now so subject. 

 

(xi) Cooperate with the selling Holders and the underwriter(s), if any, to facilitate the timely preparationand delivery of certificates representing Transfer Restricted Securities to be sold and, when issued to the purchasers of Transfer Restricted Securities pursuant to the Shelf Registration Statement, not bearing any restrictive legends (unlessrequired by applicable securities laws); and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the selling Holders or the underwriter(s), if any, may request at least two Business Days before anysale of Transfer Restricted Securities made by the selling Holders or such underwriter(s). 

 

(xii) Use its best efforts to cause the Transfer Restricted Securities covered by the Shelf Registration Statement to be registered withor approved by such other U.S. governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Securities. 

 

(xiii) Subject to Section 4(b)(i) hereof, if any fact orevent contemplated by Section 4(b)(iii)(D) hereof shall exist or have occurred, use its reasonable best efforts to pre- 

 

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pare a supplement or post-effective amendment to the Shelf Registration Statement or related Prospectus or any document incorporated therein by reference orfile any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be statedtherein or necessary to make the statements therein not misleading. 

 

(xiv) Provide CUSIP numbers for all Transfer Restricted Securities not later than the effective date of the Shelf Registration Statement and provide the Trustee under the Indenture with certificates for the Debenturesthat are in a form eligible for deposit with The Depository Trust Company. 

 

(xv) Cooperate with respect to any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter that is required to be retained in accordance with the rulesand regulations of the NASD. 

 

(xvi) Otherwiseuse its best efforts to comply with all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. 

 

(xvii) Cause the Indenture to be qualified under the TIA not later than the effective date of the ShelfRegistration Statement required by this Agreement, and, in connection therewith, cooperate with the Trustee and the holders of Debentures to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordancewith the terms of the TIA; and execute and use its best efforts to cause the Trustee thereunder to execute all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enablesuch Indenture to be so qualified in a timely manner. 

 

(xviii) Cause all Transfer Restricted Securities covered by the Shelf Registration Statement to be listed or quoted, as the case may be, on each securities exchange or automated quotation system on which similar securities issued by theIssuer are then listed or quoted. 

 

(xix) Makeavailable to each Holder upon written request each document filed with the Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act after the effective date of the Shelf Registration Statement. 

 

(xx) If requested by the underwriters, make appropriateofficers of the Issuer available to the underwriters for meetings with prospective purchasers of the Transfer Restricted Securities and prepare and present to potential investors customary “road show” material in a manner consistent withnew issuances of other securities similar to the Transfer Restricted Securities. 

 

(xxi) Use its best efforts to obtain a waiver from each person who would otherwise have the right to have securities of the Issuer (otherthan Transfer Restricted Securities) registered on the Shelf Registration Statement required by this Agreement. To the 

 

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extent the Issuer does not receive such waivers, it will use its best efforts to obtain the consent of such persons from whom waivers are not obtained tofile a separate registration statement with respect to all such other registrable securities, rather than include them in the Shelf Registration Statement and, upon receipt of such consent, to register such registrable securities in accordancetherewith. 

 

(c) Each Holder agrees by acquisition of aTransfer Restricted Security that, upon receipt of any notice from the Issuer of the existence of any fact of the kind described in Section 4(b)(iii)(D) hereof, such Holder will, and will use its reasonable best efforts to cause any underwriter(s)in an Underwritten Offering to, forthwith discontinue disposition of Transfer Restricted Securities pursuant to the Shelf Registration Statement until: 

 

(i) such Holder has received copies of the supplemented or amended Prospectus contemplated by Section 4(b)(xiii) hereof; or 

 

(ii) such Holder is advised in writing (the“Advice”) by the Issuer that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Issuer, each Holderwill deliver to the Issuer (at the Issuer’s expense) all copies, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt ofsuch notice of suspension. 

 

(d) Each Holder who intends to benamed as a selling Holder in the Shelf Registration Statement shall furnish to the Issuer in writing, prior to or on the 20th Business Day after receipt of a request therefor as set forth in a questionnaire, such information regarding such Holder and the proposed distribution by such Holder of its Transfer Restricted Securities as the Issuer may reasonablyrequest for use in connection with the Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. (The form of the questionnaire is attached hereto as Exhibit A.) Holders that do not complete the questionnaire anddeliver it to the Issuer shall not be named as selling securityholders in the Prospectus or preliminary Prospectus included in the Shelf Registration Statement and therefore shall not be permitted to sell any Transfer Restricted Securities pursuantto the Shelf Registration Statement. Each Holder who intends to be named as a selling Holder in the Shelf Registration Statement shall promptly furnish to the Issuer in writing such other information as the Issuer may from time to time reasonablyrequest in writing. Each Holder as to which the Shelf Registration Statement is being effected agrees to furnish promptly to the Issuer all information required to be disclosed in order to make information previously furnished to the Issuer by suchHolder not materially misleading. 

 

(e) Upon the effectivenessof the Shelf Registration Statement, each Holder shall notify the Issuer at least three Business Days prior to any intended distribution of Transfer Restricted Securities pursuant to the Shelf Registration Statement (a “SaleNotice”), which Sale Notice shall be effective for five Business Days. Each Holder of this Security, by accepting the same, agrees to hold any communication by the Issuer in response to a Sale Notice in confidence. 

 

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5. Registration Expenses. 

 

(a) All expenses incident to the Issuer’s performance of or compliance with this Agreement shall be borne by the Issuerregardless of whether a Shelf Registration Statement becomes effective, including, without limitation: 

 

(i) all registration and filing fees and expenses (including filings made by any Initial Purchasers, Holders or underwriters with theNASD); 

 

(ii) all fees and expenses ofcompliance with federal securities and state Blue Sky or securities laws; 

 

(iii) all expenses of printing (including printing of Prospectuses and certificates for the Common Stock to be issued upon conversion of the Debentures), messenger and delivery services and telephone; 

 

(iv) all fees and disbursements of counsel to the Issuerand, subject to Section 5(b) below, the Holders of Transfer Restricted Securities; 

 

(v) all application and filing fees in connection with listing (or authorizing for quotation) the Common Stock on a national securitiesexchange or automated quotation system pursuant to the requirements hereof; and 

 

(vi) all fees and disbursements of independent certified public accountants of the Issuer (including the expenses of any special audit andcomfort letters required by or incident to such performance). 

 

The Issuer shallbear its internal expenses (including, without limitation, all salaries and expenses of their officers and employees performing legal, accounting or other duties), the expenses of any annual audit and the fees and expenses of any Person, includingspecial experts, retained by the Issuer. 

 

(b) In connectionwith the review of the Shelf Registration Statement and other documents referred to in this Agreement, the Issuer shall, against a reasonably detailed invoice therefor, reimburse Citigroup, on behalf of the Initial Purchasers, and the Holders ofTransfer Restricted Securities being registered pursuant to the Shelf Registration Statement, for the reasonable fees and disbursements of not more than one counsel, which shall be Cahill Gordon & Reindel LLP, or such other counsel as may bechosen by a Majority of Holders for whose benefit the Shelf Registration Statement is being prepared. 

 

6. Indemnification and Contribution. 

 

(a) The Issuer agrees to indemnify and hold harmless each Initial Purchaser, each Holder whose securities are included in a Shelf Registration Statement,each Person who participates as an underwriter (any such Person being an “Underwriter”) and each Person, if any, who controls any Initial Purchaser, Holder or Underwriter within the meaning of either Section 15 of the Securities Actor Section 20 of the Exchange Act as follows: 

 

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(i) against any and all loss, liability, claim, damage and expense whatsoever, asincurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in such Shelf Registration Statement (or any amendment thereto), including all documents incorporated therein by reference, or the omission oralleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus(or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 

 

(ii) against any and all loss, liability, claim, damage andexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon anysuch untrue statement or omission, or any such alleged untrue statement or omission; provided, however that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Issuer; and 

 

(iii) against any and all expense whatsoever, as incurred(including the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commencedor threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided,however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and inconformity with written information furnished to the Issuer by the Initial Purchasers, such Holder or such Underwriter expressly for use in a Shelf Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplementthereto). 

 

(b) Each Holder whose securities are included in aShelf Registration Statement, severally but not jointly, agrees to indemnify and hold harmless the Issuer, the Initial Purchasers, each Underwriter and the other selling Holders and each Person, if any, who controls the Issuer, the InitialPurchasers, any Underwriter or any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained inSection 6(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in such Shelf Registration Statement (or any amendment thereto) or any Prospectus (or any amendment orsupplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuer by such Holder expressly for use in such Shelf Registration Statement (or any amendment thereto) or such Prospectus(or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Transfer Restricted Securitiespursuant to such Shelf Registration Statement. 

 

14 

(c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifyingparty of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it isnot materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defenseof such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying party or parties beliable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the samejurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to anylitigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 (whether or not theindemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceedingor claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. 

 

(d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel,such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifyingparty of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed suchindemnified party in accordance with such request prior to the date of such settlement; provided, however, that an indemnifying party shall not be liable for any such settlement if such indemnifying party (1) reimburses suchindemnified party in accordance with such request for the amount of such fees and expenses of such counsel as the indemnifying party believes in good faith to be reasonable and (2) provides written notice to the indemnified party and theindemnifying party disputes in good faith the reasonable ness of the unpaid balance of such fees and expenses. 

 

(e) If the indemnification provided for in this Section 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party inrespect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party,as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer from the offering and sale of the Transfer Restricted Securities on the one hand and a Holder with respect to the sale by the Holder of theTransfer Restricted Securities on the other hand; or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in 

 

15 

clause (i) but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand inconnection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. 

 

The relative benefits received by the Issuer on the one hand and a Holder on the other hand with respect to such offeringand such sale shall be deemed to be in the same proportion as the total net proceeds from the offering of the Debentures purchased under the Purchase Agreement (before deducting expenses) received by the Issuer, as set forth in the OfferingMemorandum dated June 13, 2003 relating to the Debentures on the one hand bear to the total net proceeds received by such Holder with respect to its sale of Transfer Restricted Securities on the other. The relative fault of the indemnifying party orparties on the one hand and the indemnified party or parties on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state amaterial fact relates to information supplied by the indemnifying party or parties on the one hand or the indemnified party or parties on the other hand and the parties’ relative intent, knowledge, access to information and opportunity tocorrect or prevent such statement or omission. 

 

The partieshereto agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to abovein this Section 6. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 6 shall be deemed to include any legal or other expenses reasonably incurred by suchindemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untruestatement or omission or alleged omission. 

 

Notwithstanding theprovisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Transfer Restricted Securities purchased by it were resold exceeds the amount of any damages which suchHolder has otherwise been required to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. The Holders’ obligations to contribute as provided in this Section 6(e) are several and not joint. No Person guiltyof fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. 

 

For purposes of this Section 6, each Person, if any, who controls an InitialPurchaser, a Holder or an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Initial Purchaser, such Holder or such Underwriter, and each directorof the Issuer, and each Person, if any, who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuer. 

 

7. Rule 144A. In the event the Issuer is not subject to Section 13 or15(d) of the Exchange Act, the Issuer hereby agrees with each Holder, for so long as any Transfer Re- 

 

16 

stricted Securities remain outstanding, to make available to any Holder or beneficial owner of Transfer Restricted Securities in connection with any salethereof and any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted Securitiespursuant to Rule 144A. 

 

8. Participation in UnderwrittenRegistrations. No Holder may participate in any Underwritten Registration hereunder unless such Holder: 

 

(i) agrees to sell such Holder’s Transfer Restricted Securities on the basis provided in any underwriting arrangements approved bythe Persons entitled hereunder to approve such arrangements, and 

 

(ii) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements.

 

9. Selection of Underwriters. The Holders of TransferRestricted Securities covered by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers andmanager or managers that will administer the offering will be selected by a Majority of Holders whose Transfer Restricted Securities are included in such offering; provided, that such investment bankers and managers must be reasonably satisfactoryto the Issuer. 

 

10. Miscellaneous. 

 

(a) Remedies. The Issuer acknowledges and agrees that any failure bythe Issuer to comply with its obligations under Section 2 hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages forsuch injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2 hereof. The Issuer furtheragrees to waive the defense in any action for specific performance that a remedy at law would be adequate. 

 

(b) Adjustments Affecting Transfer Restricted Securities. The Issuer shall not, directly or indirectly, take any action with respect to theTransfer Restricted Securities as a class that would adversely affect the ability of the Holders to include such Transfer Restricted Securities in a registration undertaken pursuant to this Agreement. 

 

(c) No Inconsistent Agreements. The Issuer will not, on or after thedate of this Agreement, enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. In addition, the Issuer shall not, on orafter the date hereof, grant to any of its security holders (other than the holders of Transfer Restricted Securities in such capacity) the right to include any of its securities in the Shelf Registration Statement provided for in this Agreement

 

17 

other than the Transfer Restricted Securities. Except as disclosed in the Offering Memorandum dated June 13, 2003 relating to the Debentures, the Issuer hasnot previously entered into any agreement (which has not expired or been terminated) granting any registration rights with respect to its securities to any Person which rights conflict with the provisions hereof. 

 

(d) Amendments and Waivers. This Agreement may not be amended,modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given, unless the Issuer has obtained the written consent of a Majority of Holders. 

 

(e) Notices. All notices and other communications provided for orpermitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery: 

 

(i) if to a Holder, at the address set forth on the recordsof the registrar under the Indenture or the transfer agent of the Common Stock, as the case may be; and 

 

(ii) if to the Issuer: 

 

CV Therapeutics, Inc. 

3172 Porter Drive 

Palo Alto, California 94304 

Attention: Tricia Borga Suvari 

 

With a copy (which shall not constitute notice) to: 

 

Latham & Watkins LLP. 

135 Commonwealth Drive 

Menlo Park, California 94025 

Attention: Alan C. Mendelson, Esq. 

 

All such notices and communications shall be deemed to have been duly given: at the timedelivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and on the next Business Day, if timely deliveredto an air courier guaranteeing overnight delivery. 

 

(f)Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including without limitation and without the need for an express assignment, subsequent Holders ofTransfer Restricted Securities; provided, however, that (i) this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the extent such successor or assign acquired Transfer RestrictedSecurities from such Holder and (ii) nothing contained herein shall be deemed to permit any assignment, transfer or other disposition of Transfer Restricted Securities in violation of the terms of the Purchase Agreement or the Indenture. If anytransferee of any Holder shall acquire Transfer Restricted Securities, in any manner, whether by operation of law or otherwise, such Transfer Restricted Securities shall be held subject to all of the terms of this Agreement, and by taking andholding such Transfer Restricted Securities such person shall be 

 

18 

conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement. 

 

(g) Counterparts. This Agreement may be executed in any number ofcounterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 

 

(h) Securities Held by the Issuer or Their Affiliates. Whenever theconsent or approval of Holders of a specified percentage of Transfer Restricted Securities is required hereunder, Transfer Restricted Securities held by the Issuer or its “affiliates” (as such term is defined in Rule 405 under theSecurities Act) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage. 

 

(i) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

 

(j) Governing Law. This Agreement shall be governed by,and construed in accordance with, the law of the State of New York. 

 

(k) Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision inevery other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. 

 

(l) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete andexclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein withrespect to the registration rights granted by the Issuer with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 

 

19 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 
**CV THERAPEUTICS, INC.**
By:
 
/s/    LOUIS G. LANGE, M.D., PH.D.
  
Name:
 
Louis G. Lange, M.D., Ph.D.
  
Title:
 
Chairman and Chief Executive Officer

 

20 

Accepted as of the date

first set forth above:

CITIGROUP GLOBAL MARKETS INC.

CIBC WORLD MARKETS CORP.

DEUTSCHE BANK SECURITIES INC.

FIRST ALBANY CORPORATION

NEEDHAM & COMPANY, INC.

SG COWEN SECURITIES CORPORATION

By:
 
CITIGROUP GLOBAL MARKETS INC.

By:
 
/s/    MARK SIMON
  
Name: Mark Simon
  
Title: Managing Director
  
Acting on behalf of itself and the other Initial

Purchasers

 

 

21 

**Exhibit A**

 

**CV THERAPEUTICS, INC.**

 

INSTRUCTION TO DTC PARTICIPANTS

 

[            ], 2003 

 

**URGENT - IMMEDIATE ATTENTION REQUESTED**

 

**DEADLINE FOR RESPONSE:** [            ], 2003

 

The Depository Trust Company (“DTC”) hasidentified you as a DTC Participant through which beneficial interests in the CV Therapeutics, Inc. (the “Issuer”) 2.0% Senior Subordinated Convertible Debentures due May 16, 2023 (the “Securities”) are held.

 

The Issuer is in the process of registering the Securitiesunder the Securities Act of 1933, as amended, for resale by the beneficial owners thereof. In order to have their Securities included in the registration statement, beneficial owners must complete and return the enclosed Notice of RegistrationStatement and Selling Securityholder Questionnaire. 

 

It isimportant that beneficial owners of the Securities receive a copy of the enclosed materials as soon as possible as their rights to have the Securities included in the registration statement depend upon their returning the Notice andQuestionnaire by [            ], 2003**.**Please forward a copy of the enclosed documents to each beneficial owner that holds interests in the Securities through you. If you requiremore copies of the enclosed materials or have any questions pertaining to this matter, please contact Tricia Borga Suvari, CV Therapeutics, Inc., 3172 Porter Drive, Palo Alto, CA 94304. 

**CV THERAPEUTICS, INC.**

 

**Notice of Registration Statement**

 

and 

 

Selling Securityholder Questionnaire

 

[            ], 2003 

 

Reference is hereby made to the Registration Rights Agreement, dated as of June 18, 2003 (the “Registration RightsAgreement”) between CV Therapeutics, Inc. (the “Issuer”) and Citigroup Global Markets Inc., CIBC World Markets Corp., Deutsche Bank Securities Inc., First Albany Corporation, Needham & Company, Inc. and SG CowenSecurities Corporation. Pursuant to the Registration Rights Agreement, the Issuer plans to file with the United States Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (the “ShelfRegistration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Issuer’s 2.0% Senior Subordinated Convertible Debentures due May 16, 2023(the “Securities”) and the shares of common stock, par value $.001 per share (the “Shares”), issuable upon conversion thereof. A copy of the Registration Rights Agreement is attached hereto. All capitalized termsnot otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement. 

 

Each beneficial owner of Registrable Securities (as defined below) is entitled to have the Registrable Securities beneficially owned by it included in theShelf Registration Statement. In order to have Registrable Securities included in the Shelf Registration Statement, this Notice of Registration Statement and Selling Securityholder Questionnaire (“Notice and Questionnaire”) must becompleted, executed and delivered to the Issuer’s counsel at the address set forth herein for receipt ON OR BEFORE [            ], 2003**.**Beneficial owners of RegistrableSecurities who do not complete, execute and return this Notice and Questionnaire by such date (i) will not be named as selling securityholders in the Shelf Registration Statement and (ii) may not use the Prospectus forming a part thereof for resalesof Registrable Securities. 

 

Certain legal consequences arisefrom being named as a selling securityholder in the Shelf Registration Statement and related Prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel 

regarding the consequences of being named or not being named as a selling securityholder in the Shelf Registration Statement and related Prospectus.

 

The term “Registrable Securities” is definedas all or any portion of the Securities issued from time to time under the Indenture in registered form and the Shares issuable upon conversion of such Securities; provided, however, that a security ceases to be a Registrable Securitywhen it is no longer a Transfer Restricted Security. 

 

The term“Transfer Restricted Security” is defined in the Registration Rights Agreement to mean each Debenture and each share of Common Stock issued upon conversion of Debentures until the earlier of: 

 

(i) the date on which such Debenture or such share of CommonStock issued upon conversion has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement; 

 

(ii) the date on which such Debenture or such share of Common Stock issued upon conversion is transferred in compliance with Rule 144under the Securities Act or may be sold or transferred pursuant to Rule 144(k) under the Securities Act (or any other similar provision then in force); or 

 

(iii) the date on which such Debenture or such share of Common Stock issued upon conversion ceases to be outstanding (whether as a resultof redemption, repurchase and cancellation, conversion or otherwise). 

 

**ELECTION**

 

The undersigned holder (the“Selling Securityholder”) of Registrable Securities hereby elects to include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and listed below in Item (3). The undersigned, by signing andreturning this Notice and Questionnaire, agrees to be bound with respect to such Registrable Securities by the terms and conditions of this Notice and Questionnaire and the Registration Rights Agreement, including, without limitation, Section 6 ofthe Registration Rights Agreement, as if the undersigned Selling Securityholder were an original party thereto. 

 

Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the Selling Securityholder will be required to deliver to the Issuerand Trustee the Notice of Transfer set forth as Exhibit B to the Registration Rights Agreement. 

 

The Selling Securityholder hereby provides the following information to the Issuer and represents and warrants that such information is accurate andcomplete: 

 

24 

**QUESTIONNAIRE**

 

(1)
  (a) Full Legal Name of Selling Securityholder:        (b) Full Legal Name of Registered Holder (if not the same as in (a) above) of Registrable Securities Listed in Item (3) below:        (c) Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) Through Which Registrable Securities Listed in Item (3) below areHeld:     
(2)
    Address for Notices to Selling Securityholder:                             Telephone:       Fax:       Contact Person:  
(3)
    Beneficial Ownership of Securities:     *Except as set forth below in this Item (3), the undersigned does not beneficially own any Securities or Shares issued upon conversion of anySecurities.*   (a) Principal amount at maturity of Registrable Securities beneficially owned:          CUSIP No(s). of such Registrable Securities:          Number of Shares (if any) issued upon conversion of such Registrable Securities:        (b) Principal amount at maturity of Securities other than Registrable Securities beneficially owned:          
CUSIP No(s). of such other Securities:                                                                                                                                                
     Number of Shares (if any) issued upon conversion of such other Securities:
        (c) Principal amount at maturity of Registrable Securities which the undersigned wishes to be included in the Shelf Registration Statement:          CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration Statement:          Number of Shares (if any) issued upon conversion of Registrable Securities which are to be included in the Shelf Registration Statement:     
(4)
    Beneficial Ownership of Other Securities of the Issuer:     *Except as set forth in this Item (4), the undersigned Selling Securityholder is not the beneficial or registered owner of any Shares or any other securities of the Issuer,other than the Securities and Shares listed above in Item (3).*     State any exceptions here:
(5)
    Relationships with the Issuer:     *Except as set forth below, neither the Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position oroffice or has had any other material relationship with the Issuer (or its predecessors or affiliates) during the past three years.*     State any exceptions here:
(6)
    Plan of Distribution:     *Except as set forth below, the undersigned Selling Securityholder intends to distribute the Registrable Securities listed above in Item (3) only as follows (if at all): SuchRegistrable Securities may be sold from time to time directly by the undersigned Selling Securityholder or, alternatively, through underwriters, broker-dealers or agents. Such Registrable Securities may be sold in one or more transactions at fixedprices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (i) on any nationalsecurities exchange or quotation service on which the Registered Securities*
 

2 

      
*may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges orservices or in the over-the-counter market, or (iv) through the writing of options. In connection with sales of the Registrable Securities in the course of hedging the positions they assume. The Selling Securityholder may also sell RegistrableSecurities short and deliver Registrable Securities to close out such short positions, or loan or pledge Registrable Securities to broker-dealers that in turn may sell such securities.*
      
State any exceptions here:

 

Note: In no event maysuch method(s) of distribution take the form of an underwritten offering of the Registrable Securities without the prior agreement of the Issuer. 

 

By signing below, the Selling Securityholder acknowledges that it understands its obligation to comply, and agrees that it will comply, with theprovisions of the Exchange Act and the rules to regulations thereunder, particularly Regulation M. 

 

In the event that the Selling Securityholder transfers all or any portion of the Registrable Securities listed in Item (3) above after the date on whichsuch information is provided to the Issuer, the Selling Securityholder agrees to notify in writing the Issuer and any transferee(s) at the time of the transfer of its rights and obligations under this Notice and Questionnaire and the RegistrationRights Agreement. 

 

By signing below, the Selling Securityholderconsents to the disclosure of the information contained herein in its answers to Items (1) through (6) above and the inclusion of such information in the Shelf Registration Statement and related Prospectus. The Selling Securityholder understandsthat such information will be relied upon by the Issuer in connection with the preparation of the Shelf Registration Statement and related Prospectus. 

 

In accordance with the Selling Securityholder’s obligation under Section 2(b) of the Registration Rights Agreement to provide such information as maybe required by law for inclusion in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the Issuer in writing of any inaccuracies or changes in the information provided herein which may occur subsequent to the datehereof at any time while the Shelf Registration Statement remains in effect. All notices hereunder and pursuant to the Registration Rights Agreement shall be made in writing, by hand-delivery, first class mail, or air courier guaranteeing overnightdelivery as follows: 

 

3 

To the Issuer: 

 

CV Therapeutics, Inc.

3172 Porter Drive

Palo Alto, California 94304

Telephone: (650) 384-8500

Facsimile: (650) 858-0388

Attention: Tricia Borga Suvari

 

With a copy (which shall not constitute notice) to: 

 

Latham & Watkins LLP

135 Commonwealth Drive

Menlo Park, California 94025

Telephone: (650) 463-4693

Facsimile: (650) 463-2600

Attention: Alan C. Mendelson, Esq.

 

Once this Noticeand Questionnaire is executed by the Selling Securityholder and received by the Issuer’s counsel, the terms of this Notice and Questionnaire, and the representations and warranties contained herein, shall be binding on, shall inure to thebenefit of and shall be enforceable by the respective successors, heirs, personal representatives, and assigns of the Issuer and the Selling Securityholder (with respect to the Registrable Securities beneficially owned by such Selling Securityholderand listed in Item (3) above). This Agreement shall be governed in all respects by the laws of the State of New York. 

 

IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or byits duly authorized agent. 

 

Dated:                                

 
    
Selling Securityholder
     (Print/type full legal name of beneficial owner of Registrable Securities)
 

By:
 
 
  
Name:
  
Title:

 

PLEASE RETURN THE COMPLETED ANDEXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [            ], 2003 TO THE ISSUER’S COUNSEL AT: 

 

4 

Latham & Watkins LLP

135 Commonwealth Drive

Menlo Park, California 94025

Telephone: (650) 463-4693

Facsimile: (650) 463-2600

Attention: Alan C. Mendelson, Esq.

 

 

5 

**Exhibit B**

 

**NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT**

 

Wells Fargo Bank Minnesota, N.A. 

Sixth &Marquette 

MAC N9303 120 

Minneapolis, Minnesota 55479

Attention: [Corporate Trust Services] 

 

Re:
 
CV Therapeutics, Inc.

2.0% Senior Subordinated Convertible Debentures

due May 16, 2023 (the “Debentures”) 

 

DearSirs: 

 

Please be advised that                                     has transferred $             aggregate principal amount at maturity (subject to upward adjustment in the event of an upward interest adjustment) of the above-referenced Debentures pursuant to aneffective Registration Statement on Form [            ] (File No. 333-            ) filed by the Issuer.

 

We hereby certify that the prospectus delivery requirements,if any, of the Security Act of 1933, as amended, have been satisfied and that the above-named beneficial owner of the Debentures is named as a “Selling Holder” in the Prospectus dated                                 , or in supplements thereto, and that theaggregate principal amount of the Debentures transferred are the Debentures listed in such Prospectus opposite such owner’s name. 

 
  
Very truly yours,
    
(Name)

By:
 
 
  
(Authorized Signature)