ASSET PURCHASE AGREEMENT

Exhibit 10.1

EXECUTION VERSION

ASSET PURCHASE AGREEMENT

dated as of July 13, 2009,

between

OSCIENT PHARMACEUTICALS CORPORATION

as Seller,

and

CORNERSTONE BIOPHARMA, INC.

as Buyer

TABLE OF CONTENTS

List of Schedules

ASSET PURCHASE AGREEMENT

     THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”) is made as of July 13, 2009, between Oscient Pharmaceuticals Corporation, a Massachusetts corporation (“ Seller ”), and Cornerstone BioPharma, Inc., a Nevada corporation (“ Buyer ”).

     WHEREAS, Seller expects to file a petition under Title 11, United States Code (the “ Bankruptcy Code ”) with the United States Bankruptcy Court for the District of Massachusetts (the “ Bankruptcy Court ”) commencing a case under Chapter 11 of the Bankruptcy Code (the “ Bankruptcy Case ”) shortly after the execution of this Agreement;

     WHEREAS, Seller (as successor in interest to Genesoft Pharmaceuticals, Inc.) holds a license with LG Life Sciences, Ltd. (“ LGLS ”) dated as of October 22, 2002 (as amended, the “ License ”) to develop and commercialize gemifloxacin (the “ Active Ingredient ”), a compound marketed by Seller under the trademark FACTIVE for the five-day treatment of acute bacterial exacerbations of chronic bronchitis and community-acquired pneumonia (the “ Product ”); and

     WHEREAS, Buyer desires to purchase from Seller the License and substantially all of the assets of Seller related to the Product free and clear of liens, claims, and encumbrances pursuant to section 363(f) of the Bankruptcy Code and to assume only certain specified liabilities of Seller related thereto, all on the terms and subject to the conditions set forth in this Agreement;

     NOW, THEREFORE, in consideration of these premises, the respective covenants of Buyer and Seller set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

     1.  Purchase and Sale of the Purchased Assets .

     1.1. Assets Being Sold to Buyer. Seller agrees to sell and assign to Buyer free and clear of all Liens (as hereinafter defined) (other than liabilities that Buyer will assume pursuant to Section 1.3), and Buyer agrees to purchase at the Closing (as hereinafter defined) and thereafter as provided herein, all of Seller’s right, title and interest in, to and under the following assets other than Excluded Assets (as hereinafter defined) (collectively, the “ Purchased Assets ”) as the same exist on the date hereof and on the Closing Date (as hereafter defined) and any other delivery or assignment date:

     1.1.1. All rights to the name “FACTIVE” and all other registered and unregistered United States and foreign trademarks, trade names, service marks, trade dress, logos, designs, brand names and domain names and all related applications (“ Trademarks ”) related solely to the Product and the goodwill associated therewith, including without limitation the trademarks listed on Schedule 1.1.1 hereto;

     1.1.2. All customer, distributor, and supplier information, historical sales, marketing, and other information, historical profit and loss statements, and other financial records related solely to the Product (“ Records ”);

     1.1.3. Without limiting any other provision of this Section 1.1, all customer and supplier lists related solely to the Product, including without limitation mailing lists, warranty lists, and all related files and data bases;

     1.1.4. All rights in the website content and domain name http://www.factive.com and any intellectual property related thereto, but excluding any Seller Trade Dress (as hereinafter defined);

     1.1.5. All inventory of Seller usable or salable in the ordinary course of business (whether raw materials, work-in-process, or finished goods) related solely to the Product, together with related packaging materials, product samples, and all rights of Seller to acquire inventory in the possession or control of third parties, including inventory of the Active Ingredient in the possession or control of Patheon Inc. (“ Inventory ”), provided that (a) Buyer and Seller shall meet at least two business days prior to the Closing Date contemplated by this Agreement to identify usable or salable Active Ingredient and (b) Seller may sell to any third party any Active Ingredient that Buyer has identified as not usable or salable;

     1.1.6. All rights of Seller under (a) the License (the “ Assigned Contract ”) and (b) licenses, contracts, and agreements related solely to the Product listed on Schedule 1.1.6 hereto that Buyer shall elect to have Seller assume and assign to Buyer by notice to Seller in writing before the Sale Hearing Date, it being agreed that Seller will make all necessary motions and take any other appropriate actions in the Bankruptcy Case to cause any such contract or agreement to be assigned to Buyer (“ Additional Assigned Contracts ”), provided that Buyer may withdraw such notice and direct Seller to reject any Additional Assigned Contract at any time prior to the date of entry of an order of the Bankruptcy Court authorizing and directing assumption and assignment of such Additional Assigned Contract;

     1.1.7. All training, educational, and promotional materials related solely to the Product, including without limitation advertising designs and copy, signs, videotapes, brochures, infomercials, product literature, trade displays, posters and banners, and any copyrights related thereto;

     1.1.8. The United States new drug application covering the Product, including any supplements, amendments, or modifications thereto, or divisions thereof (the “ NDA ”), submitted to or required by the United States Food and Drug Administration (the “ FDA ”), Investigational New Drug Applications (“ INDs” ) Nos. 53-908 and 60-132, and the foreign regulatory filings described on Schedule 1.1.8 hereto, including all records and data related thereto in Seller’s possession or control;

     1.1.9. All claims, judgments, choses in action or rights related solely to the Product, including for past, present or future (a) infringement of patents licensed pursuant to the License or infringement or dilution of any Trademarks licensed pursuant to the License related solely to the Product, or (b) injury to the goodwill associated with any Trademark or trademark registration licensed pursuant to the License related solely to the Product (“ Assigned Causes of Action ”). Notwithstanding

the foregoing , claims and causes of action pursuant to §§542, 543, 544, 545, 547, 548, 549, 550, or 553 of the Bankruptcy Code shall not constitute Assigned Causes of Action.

     1.2. Excluded Assets. The Purchased Assets shall not include any other assets of Seller, including, but not limited to, the following (collectively, the “ Excluded Assets ”):

     1.2.1. All cash, cash equivalents, and securities on hand as of the Closing, wherever located, including, without limitation, in accounts, lock boxes, and other similar accounts (whether maintained at a bank, savings and loan, or other financial institution);

     1.2.2. All income tax refunds or other tax refunds;

     1.2.3. All claims or causes of action (including pursuant to §§542, 543, 544, 545, 547, 548, 549, 550, or 553 of the Bankruptcy Code), other than Assigned Causes of Action;

     1.2.4. All contracts not related solely to the Product or not assumed by Buyer pursuant to Section 1.1.6;

     1.2.5. All accounts receivable (including accounts receivable related to the Product), intercompany claims, general intangibles, prepaid expenses, deposits, and other current assets of Seller;

     1.2.6. All insurance policies and related claims and all proceeds of insurance policies or related claims;

     1.2.7. All fixtures, furniture, and equipment, including office equipment, telephone systems and computers, furniture, fixtures and leasehold improvements, office supplies, and personal property not related to the Product, and other physical assets of Seller not related to the Product;

     1.2.8. All Active Ingredient that, pursuant to Section 1.1.5, Buyer has identified as not usable or salable.

     1.2.9. Antara ^® and all assets related solely to Antara ^® ;

     1.2.10. Ramoplanin and all assets related solely to Ramoplanin; and

     1.2.11. Any economic interest in drug discovery or genomics alliances of Seller.

     1.3. Assumption of Certain Liabilities. At the Closing, or on the date of assumption and assignment in the case of contracts designated for assumption and assignment pursuant to Section 1.1.6 for which Bankruptcy Court approval has not been obtained prior to the Closing Date, Buyer will assume only the following liabilities of Seller relating to the Purchased Assets (the “ Assumed Liabilities ”). Except as specifically described in this Section 1.3, Buyer shall not

assume any liability or obligation of Seller whatsoever, whether or not any such liability or obligation pertains to the Purchased Assets. Without limiting the foregoing, Buyer shall not assume any liability for contract rejection damage claims for contracts that are not assumed by Buyer.

     1.3.1. Buyer shall assume, under section 365(b)(1)(A) of the Bankruptcy Code, all payment or performance obligations and related liabilities that arise after the Closing under the Assigned Contract and Additional Assigned Contracts.

     1.3.2. Buyer shall assume any cure obligations with respect to the Assigned Contract and Additional Assigned Contracts as provided herein, provided that Buyer, in its sole discretion, may as provided herein elect to delete any contract from the designated list of Additional Assigned Contracts to be assigned to Buyer and, in that event, shall not assume any cure obligations in respect of such contract.

     1.3.3. Buyer shall assume all obligations of Seller with respect to shipments of the Product that are returned on or after the Closing Date.

     1.4. Purchase Price. The consideration for the Purchased Assets (the “ Purchase Price ”) shall be (a) a cash payment of Five Million Dollars ($5,000,000) plus the Inventory Purchase Price (as defined below) (the “ Closing Date Payment ”), (b) the Purchase Royalty Payments (as defined below), and (c) the assumption of the Assumed Liabilities. In accordance with Section 2.2, at the Closing, the Buyer shall deliver the Assumption and Assignment Agreement (as hereinafter defined) and deliver the Closing Date Payment by (i) the delivery of Four Million Five Hundred Thousand Dollars ($4,500,000) plus the Inventory Purchase Price by wire transfer of immediately available funds, or in such manner or form as may be mutually satisfactory; and (ii) the delivery by the Escrow Agent (as hereinafter defined) to Seller of the Deposit (as hereinafter defined).

     1.4.1. Inventory Purchase Price . At least two business days prior to the Closing Date, representatives of Seller and Buyer shall meet to determine mutually in good faith the number of units held as inventory by or on behalf of Seller of (a) the Active Ingredient in the possession or control of Patheon Inc. that can be or is in the process of being manufactured into the finished product form of the Product (“ Finished Product ”) that Buyer elects to purchase pursuant to Section 1.1.5; (b) samples of Finished Product (in quantities usable in the ordinary course of business) with at least 180 days of remaining shelf life from the Closing Date; and (c) all inventory of Finished Product with at least 18 months of remaining shelf life from the Closing Date (collectively, the “ Closing Inventories ”). The purchase price for the Closing Inventories will be the aggregate of (i) the actual per unit purchase cost to Seller (i.e., without overhead allocation) for each unit of each type of Closing Inventories, multiplied by (ii) the number of units of each type of Closing Inventories (the “ Inventory Purchase Price ”). To the extent that there are any material differences in the amount of Closing Inventories as of the Closing Date from the amount determined prior to the Closing Date, as determined mutually in good faith by representatives of Seller and Buyer, the Seller and Buyer agree to make an appropriate adjustment payable promptly following the Closing Date.

     1.4.2. Purchase Royalty Payments .

     1.4.3. Deposit. On the date hereof, Buyer shall make a cash deposit of $500,000 (the “ Deposit ”) by wire transfer to Ropes & Gray LLP (the “ Escrow Agent ”) to be held in a non-interest bearing escrow account in accordance with the joint escrow instructions attached hereto as Exhibit 1.4.3 and to be applied to the Closing Date Payment, subject to the terms and conditions therein. Buyer and Seller consent to the terms of these joint escrow instructions and agree to be bound thereby.

     1.4.4. Allocation of Purchase Price. The Purchase Price will be allocated to the Purchased Assets as reasonably determined by Buyer within 30 days after the Closing Date, provided that the allocation of the Purchase Price to Inventory shall equal the Inventory Purchase Price, and Buyer shall promptly notify Seller of such allocation. In any event, such allocation shall be in accordance with accounting principles generally accepted in the United States. Seller agrees that such allocation shall be binding for tax reporting purposes.

     1.5. Assigned Contract; Cure Payments . In connection with the Assigned Contract, Buyer shall pay any cure payments related to liabilities that arise prior to the Closing that are required to be paid in connection with such assumption and assignment. Seller has set forth a description of the nature and amount of such cure payments expected to be required as of the Closing on Schedule 1.1.6 hereto. As provided in the Assumption and Assignment Order, the

assumption and assignment of the Assigned Contract shall occur simultaneously at the Closing hereunder.

     1.6. Additional Assigned Contracts; Cure Payments . In connection with any Additional Assigned Contracts, Buyer shall pay any cure payments related to liabilities that arise prior to the date of assumption and assignment of such Additional Assigned Contract that are required to be paid in connection with such assumption and assignment. Seller has set forth a description of the nature and amount of such cure payments expected to be required in connection with such assumption and assignment on Schedule 1.1.6 hereto.

     1.7. Further Assurances. Each of the parties hereto, before, at, and after the Closing, upon the request from time to time of the other party hereto and without further consideration, will do each and every reasonable act and thing as may be necessary or reasonably desirable to consummate the transactions contemplated hereby and to effect an orderly transfer to Buyer of the Purchased Assets, including without limitation: executing, acknowledging, and delivering assurances, assignments, powers of attorney, and other documents and instruments; obtaining the approval of the Bankruptcy Court as promptly as practicable for the consummation of the transactions contemplated hereby; obtaining any third party consents necessary to transfer any Purchased Assets; furnishing information and copies of documents, books, and records; filing reports, returns, applications, filings, and other documents and instruments with Governmental Bodies (as hereinafter defined); in the case of Seller, turning over to Buyer all mail and communications related to the Purchased Assets; and cooperating with the other party hereto (at such other party’s expense) in exercising any right or pursuing any claim, whether by litigation or otherwise, other than rights and claims running against the party from whom or which such cooperation is requested. If either party shall receive any payment that pursuant to this Agreement is the property of the other party, then the party receiving such payment shall promptly turn such payment over to the other party and until such time shall hold it in trust for the other party.

     2.  Closing; Deliveries .

     2.1. Closing . The closing of the transactions contemplated hereby (the “ Closing ”) shall be held at the offices of Ropes & Gray LLP, counsel to Seller, One International Place, Boston, Massachusetts at 10:00 a.m. on the first business day that is at least ten days after the date of entry of the Sale Order (as defined below) or such other date as may be mutually satisfactory to the parties, subject to satisfaction or waiver of the conditions set forth in Sections 5 and 6 hereof (the date of the Closing being the “ Closing Date ”).

     2.2. Deliveries at Closing. At the Closing, (i) Buyer shall make the Closing Date Payment, (ii) Seller shall deliver to Buyer the instruments of conveyance and other documents specified in Section 5, and (iii) Buyer shall deliver to Seller the instruments of conveyance and other documents specified in Section 6.

     2.3. Delivery of Purchased Assets by Seller. To the extent not already delivered to Buyer, as soon as practicable following the Closing (and no more than fifteen days thereafter unless otherwise mutually agreed by Seller and Buyer), Seller shall, at Buyer’s cost and expense, deliver to Buyer all Purchased Assets in physical possession of Seller and shall instruct all third

parties that physically possess Purchased Assets to deliver such Purchased Assets to Buyer at Buyer’s cost and expense. Seller shall, at Seller’s cost and expense, continue to bear the risk of loss and maintain adequate insurance (or self-insurance) against loss associated with the Purchased Assets until they have been delivered to Buyer or its common carrier. With respect to Trademarks licensed pursuant to the License related solely to the Product owned by Seller, Seller shall instruct its trademark counsel to deliver the original files and all other records of Seller or its trademark counsel relating to the Trademarks to Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., at the address provided in Section 9 of this Agreement, as soon as practicable following the Closing (and no more than fifteen days thereafter unless otherwise mutually agreed by Seller and Buyer). In addition, Seller shall destroy, without cost to Buyer, any Inventory not usable or salable in the ordinary course of business related solely to the Product (other than Active Ingredient that Buyer has identified as not usable or salable in accordance with Section 1.1.5) that is owned by Seller on the Closing Date and not delivered to Buyer pursuant to this Agreement.

     3.  Representations of Seller . Seller represents and warrants to Buyer as follows:

     3.1. Due Incorporation, Authorization, and Good Standing. Seller is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Massachusetts, and, subject to the approval of the Bankruptcy Court, has the requisite corporate power and authority to enter into, execute, deliver, and perform this Agreement, any other agreements relating to the transactions contemplated hereby, and any instruments of transfer and conveyance (collectively, with this Agreement, the “ Transaction Documents ”) to which Seller is party, and to consummate all transactions contemplated hereby and thereby and has taken all corporate action required by law and its Articles of Organization and bylaws to authorize such execution, delivery, and performance. This Agreement is, and each of the other Transaction Documents to which Seller is a party will be, subject to the approval of the Bankruptcy Court and upon execution by a duly authorized officer of Seller at the Closing, the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, and similar laws of general applicability affecting the rights and remedies of creditors and to general principles of equity, regardless of whether enforcement is sought in proceedings in equity or at law.

     3.2. No Violation or Approval. The execution, delivery, and performance of this Agreement and the other Transaction Documents to which Seller will be a party and the consummation of the transactions contemplated hereby and thereby will not result in a breach or violation of, or a default under, Seller’s Articles of Organization, bylaws, any statute applicable to it, any agreement to which it is a party or by which it or any of its properties are bound, or any order, judgment, decree, rule, or regulation of any federal, state, local, or foreign government or any court, administrative or regulatory agency or commission, or other governmental authority or agency having jurisdiction over it or its properties (“ Governmental Body ”). Except for the approval of the Bankruptcy Court and filings to be made on or after the Closing Date in connection with the Closing, no consent, approval, order, or authorization of, or declaration or filing with, any Governmental Body is required of, and has not been obtained or made by, Seller in connection with the execution and delivery of this Agreement and the other Transaction Documents or the consummation of the transactions contemplated hereby and thereby.

     3.3. Title to Assets. Seller has good title to all the Purchased Assets and at the Closing will transfer the Purchased Assets to Buyer pursuant to section 363 of the Bankruptcy Code free and clear of all liens, claims, encumbrances (“ Liens ”). Subject to Bankruptcy Court approval, Seller has the complete and unrestricted power and right to transfer the Purchased Assets to Buyer as contemplated by this Agreement.

     3.4. Brokers, Finders, Etc. Except for agreements with Broadpoint Capital, Inc., Seller has not entered into any brokerage or other agreement contemplating commissions or other payments payable upon sale of the Purchased Assets. All negotiations relating to this Agreement and the transactions contemplated hereby have been carried on without the intervention of any person acting on behalf of Seller in such manner as to give rise to any valid claim against Buyer for any brokerage or finder’s commission, fee, or similar compensation.

     3.5. Trade Names and Trademarks. Listed on Schedule 1.1.1 are all Trademarks licensed by Seller related solely to the Product that are registered or as to which registrations are pending with the U.S. Patent and Trademark Office or any counterpart foreign trademark office.

     3.6. Patents. There are no patents or patent applications, relating solely to the Product, owned, licensed to, or otherwise controlled by Seller or, to Seller’s knowledge, any of its current or former employees or independent contractors other than the patents and patent applications licensed to Seller pursuant to the License.

     3.7. SEC Filings. All registration statements, forms, reports, certifications, and other documents filed by Seller with the Securities and Exchange Commission (the “ SEC ”) (the “ Seller SEC Documents ”) did not at the time they were filed contain any untrue statement of a material fact related to the Product or omit to state a material fact related to the Product required to be stated in such Seller SEC Documents or necessary in order to make the statements related to the Product in such Seller SEC Documents, in the light of the circumstances under which they were made, not misleading. Seller has notified Buyer of all events and circumstances that have occurred related to the Product, since Seller filed its last Annual Report on Form 10-K with the SEC through the date hereof, that would require disclosure on an Annual Report on Form 10-K or Quarterly Report on Form 10-Q if such report were required to be filed on the date hereof. Seller has made available to Buyer copies of all comment letters received by Seller from the staff of the SEC since January 1, 2007 and all responses to such comment letters by or on behalf of Seller that relate to disclosure regarding the Product. As used in this Section 3.7, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied, or otherwise made available to the SEC.

     3.8. Legal Proceedings; Orders. Except as set forth on Schedule 3.8 and except for the Bankruptcy Case and any other action, arbitration, investigation, litigation, or suit commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator (a “ Proceeding ”) that is not material, as of the date hereof, there is no pending Proceeding that has been commenced by or against the Seller (a) relating to the Purchased Assets or (b) that challenges, or that would have the effect of preventing, delaying, or making illegal, any of the transactions contemplated hereby. Except as set forth on Schedule 3.8 , to Seller’s knowledge, as of the date hereof, there is no order issued by any Governmental Body related to the Product or to Seller’s business in connection with the Product.

     3.9. Customer Inventory . The level of inventory of the Product in the possession of each of Seller’s primary customers Cardinal and McKesson does not exceed the quantity equal to four times the average monthly unit volume of sales made by Seller to each such customer with respect to the Product (calculated over the immediately preceding twelve months), as evidenced by a recent inventory report supplied by each such customer to Seller (the “ Inventory Reports ”).

     3.10. Disclaimer . Buyer acknowledges and agrees that, except as expressly provided in this Agreement, the sale of the Purchased Assets shall be “as is and where is” and Seller makes no, and hereby disclaims any, representation or warranty to Buyer with respect to the Purchased Assets or the transactions contemplated hereby, including, without limitation, any warranty of merchantability or fitness for a particular purpose. Without limiting the generality of the foregoing, Seller makes no representation or warranty, express or implied, as to the validity or utility of the Purchased Assets, the status of any issued patents or registered trademarks or any applications for patents or trademarks, whether the Trademarks or any other intellectual property or any use thereof infringes on the rights of others, or whether any license agreements or contracts (other than the License at the Closing) are assignable. Further, there is no warranty as to the condition of any tangible assets constituting Purchased Assets.

     4.  Representations of Buyer . Buyer represents and warrants to Seller as follows:

     4.1. Due Incorporation, Authorization, and Good Standing. Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Nevada, and has the requisite corporate power and authority to enter into, execute, deliver, and perform this Agreement and the other Transaction Documents to which Buyer is a party and to consummate all transactions contemplated hereby and thereby and has taken all action required by law and its Articles of Incorporation and bylaws to authorize such execution, delivery, and performance. This Agreement is, and each of the other Transaction Documents to which Buyer is a party, will, upon execution thereof by a duly authorized officer of Buyer at the Closing, be the valid and legally binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, and similar laws of general applicability affecting the rights and remedies of creditors and to general principles of equity, regardless of whether enforcement is sought in proceedings in equity or at law.

     4.2. No Violation or Approval. The execution, delivery, and performance of this Agreement and the other Transaction Documents to which Buyer will be a party and the consummation of the transactions contemplated hereby and thereby will not result in a breach or violation of, or a default under, Buyer’s Articles of Incorporation, bylaws, any statute applicable to it, or any order, judgment, decree, rule, or regulation of any Governmental Body. No consent, approval, order, or authorization of, or declaration or filing with, any Governmental Body is required of, and has not been obtained or made by, Buyer in connection with the execution and delivery of this Agreement and the other Transaction Documents or the consummation of the transactions contemplated hereby and thereby.

     4.3. Brokers, Finders, etc. All negotiations relating to this Agreement and the transactions contemplated hereby have been carried on without the intervention of any person acting on behalf of Buyer in such manner as to give rise to any valid claim against Seller or Buyer for any brokerage or finder’s commission, fee, or similar compensation.

     5.  Conditions Precedent to the Obligations of Buyer . The obligations of Buyer to purchase the Purchased Assets and to consummate the other transactions contemplated hereby and by the other Transaction Documents are subject to the satisfaction on or prior to the Closing Date of each of the following conditions, unless expressly waived by Buyer at or prior to the Closing:

     5.1. Representations and Warranties. The representations and warranties made by Seller in this Agreement (including the Exhibits and Schedules hereto) shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date, except for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date).

     5.2. Seller’s Performance. All of the covenants and agreements that Seller is required to perform or to comply with pursuant to this Agreement at or prior to the Closing must have been duly performed and complied with in all material respects.

     5.3. Bill of Sale, Assignment and Assumption Agreement. Seller shall have executed and delivered a bill of sale (“ Bill of Sale ”) in the form attached hereto as Exhibit 5.3(a) and an assignment and assumption agreement (“ Assignment and Assumption Agreement ”) in the form attached hereto as Exhibit 5.3(b) conveying to Buyer all of the Purchased Assets and transferring to Buyer the Assigned Contract.

     5.4. Domain Names. Seller shall have executed and delivered to Buyer appropriate assignment instruments for all domain names included in the Purchased Assets.

     5.5. Letter to FDA . Seller shall have delivered to Buyer a letter from Seller to the FDA, duly executed by Seller, transferring the rights to the NDA and the INDs to Buyer, in a form reasonably satisfactory to Buyer.

     5.6. Letter to DDMAC. Seller shall have delivered to Buyer a letter from Seller to the FDA, Division of Drug Marketing, Advertising and Communication, duly executed by Seller, notifying of the transfer of the NDA and the INDs to Buyer.

     5.7. Bidding Procedures Order. The Bankruptcy Court shall have held a hearing (the “ Bidding Procedures Hearing ”) and shall have entered a final non-appealable order in the Bankruptcy Case approving procedures for solicitation and consideration by the Bankruptcy Court of bids from third parties for the Purchased Assets (the “ Bidding Procedures Order ”), which Bidding Procedures Order shall be in form and substance reasonably satisfactory to Seller and Buyer and shall provide, among other things, that:

     5.7.1. in the event that the Bankruptcy Court fails to approve (i) the Sale Motion (as hereinafter defined) or (ii) a sale to Buyer as provided hereunder and instead approves a sale of some or all of the Purchased Assets to an entity that has submitted a Counteroffer (as hereinafter defined), and such sale closes, Seller shall pay to Buyer, without further order of the Bankruptcy Court, the lesser of (a) $75,000 and (b) Buyer’s actual expenses incurred in connection with the transactions contemplated hereby, including expenses of counsel and other consultants (the “ Expense Reimbursement ”);

     5.7.2. in the event that the Bankruptcy Court fails to approve a sale to Buyer as provided hereunder and instead approves a sale of some or all of the Purchased Assets to an entity that has submitted a Counteroffer, and such sale closes, Seller shall pay to Buyer, without further order of the Bankruptcy Court, the lesser of (a) $100,000 and (b) 35% of the excess of the amount of (i) the Counteroffer over (ii) the Purchase Price plus $175,000 (the “ Break-Up Fee ”);

     5.7.3. if Buyer elects to participate in bidding at the Sale Hearing (as hereinafter defined), Buyer may credit the Expense Reimbursement and Break-Up Fee towards its bid;

     5.7.4. the initial bid at the Sale Hearing must be at a purchase price with a minimum cash component payable at closing of $5,275,000 plus the Inventory Purchase Price;

     5.7.5. each subsequent bid must be at least $100,000 greater than the preceding bid;

     5.7.6. each bidder must make a $500,000 cash deposit on the same terms as the Buyer as provided herein;

     5.7.7. each bid must be irrevocable until the closing of the sale;

     5.7.8. each bidder must demonstrate to Seller’s satisfaction in its reasonable discretion that the bidder is (a) financially able to consummate the transaction contemplated by such bid, which ability may be demonstrated by submission of current audited or unaudited financial statements or other reasonable evidence, or, if the bidder is an entity formed for the purpose of acquiring the Purchased Assets, current audited or unaudited financial statements or other reasonable evidence of the equity holders of the bidder, and (b) able to consummate the transaction on the date and on the terms contemplated by the asset purchase agreement submitted with such bid;

     5.7.9. the terms and conditions of each bid must be, in aggregate, not materially more burdensome to Seller than the terms and conditions contained herein as determined by Seller in its sole discretion exercised in good faith and cannot be conditioned on the outcome of unperformed due diligence by the bidder, material adverse change provisions, and/or obtaining financing; and

     5.7.10. Seller may not modify the foregoing procedures without further order of the Bankruptcy Court.

     5.8. Notice of Sale. Seller shall have served a copy of a notice of the sale and assumption and assignment of the Assigned Contract and Additional Assigned Contracts upon (i) the Office of the United States Trustee for the District of Massachusetts, Eastern Division; (ii) counsel to Paul Royalty Fund Holdings II, LP; (iii) the Indenture Trustees for the Seller’s Second Lien and Unsecured Notes, or their counsel; (iv) the creditors holding the 30 largest unsecured claims against the Seller’s estate; (v) all parties known to have asserted Liens against the

Purchased Assets; (vi) federal and state taxing authorities’ offices which have a reasonably known interest in the relief requested in the Bankruptcy Case; (vii) counsel to the Buyer; (viii) all entities reasonably known to have asserted any interest in or expressed an interest in a transaction with respect to the Purchased Assets within the last twelve months; (ix) all parties to the Assigned Contract and Additional Assigned Contracts; and (x) all parties who have filed notices of appearance requesting service of notice and pleadings and all other persons required to receive notice of the sale pursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure (the “ Bankruptcy Rules ”). Seller shall have filed a certificate of such service (the “ Certificate of Service ”) with the Bankruptcy Court in the Bankruptcy Case.

     5.9. Sale Order. The Bankruptcy Court shall have entered an order in the Bankruptcy Case in form and substance reasonably satisfactory to Seller and Buyer (i) approving the sale, transfer, assignment, and assumption, as appropriate, of the Purchased Assets to Buyer upon the terms and conditions set forth herein, free and clear of any and all Liens of any kind or nature whatsoever; (ii) providing that any and all valid Liens shall attach to the Purchase Price at Closing; and (iii) containing findings that all applicable notice and hearing requirements for the transactions contemplated hereby under the Bankruptcy Code, Bankruptcy Rules, and any local rules of the Bankruptcy Court have been satisfied, the transactions contemplated hereby are in the best interests of Seller’s estate and creditors in the Bankruptcy Case, and Buyer is a good faith purchaser pursuant to Section 363(m) of the Bankruptcy Code (the “ Sale Order ”).

     5.10. Assumption and Assignment Order. The Bankruptcy Court shall have entered an order in the Bankruptcy Case independently or in conjunction with the Sale Order approving assumption of the A