ASSET SALE AND PURCHASE AGREEMENT

Asset Purchase Agreement

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CV THERAPEUTICS INC | CV Therapeutics, Inc | PFPC Bank Limited

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Title: ASSET SALE AND PURCHASE AGREEMENT
Governing Law: New York Date: 8/1/2008
Industry: Biotechnology and Drugs Law Firm: Cooley Godward;Latham Watkins Sector: Healthcare

Exhibit 10.1

ASSET SALE AND PURCHASE AGREEMENT

This Asset Sale and Purchase Agreement (this “ Agreement ”) is entered into as of April 10, 2008, between CV Therapeutics, Inc., a Delaware corporation (“ CVT ”), and TPG-Axon Royalty Trust, a trust established under the laws of the Republic of Ireland (“ TPG-Axon ”). CVT and TPG-Axon are each referred to herein by name or, individually, as a “ Party ” or, collectively, as “ Parties .” In addition, for purposes of this Agreement, the term “CVT” includes all successors and assignees of CVT’s rights and obligations under the Astellas Agreement (as defined below).

BACKGROUND

A.	CVT is entitled to receive certain royalties on sales of Regadenoson (as defined below) and other payments from Astellas US LLC under the Astellas Agreement (as defined below).

CVT wishes to sell, assign, transfer, convey and deliver to TPG-Axon, pursuant to the terms and conditions set forth herein, all of CVT’s right, title and interest in, to and under the TPG-Axon Royalty Interest (as defined below) and all other Assigned Rights (as defined below) in consideration of the payment by TPG-Axon to CVT of the Purchase Price (as defined below).

C.	CVT and TPG-Axon wish to enter into this Agreement to effect the sale, assignment, transfer, conveyance and delivery to TPG-Axon of all of CVT’s right, title and interest in, to and under the TPG-Axon Royalty Interest and all other Assigned Rights, on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be bound, agree as follows:

AGREEMENT

ARTICLE 1

DEFINITIONS

When used and capitalized in this Agreement (other than the headings of the Articles and Sections), including the foregoing recitals, exhibits and schedules hereto, the following terms shall have the meanings assigned to them in this Article and include the plural as well as the singular.

“Account Instructions” has the meaning set forth in the Deposit Agreement.

“Adenoscan ^® ” has the meaning set forth in the Astellas Agreement.

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.

“Affiliate” means, with respect to an entity, any business entity controlling, controlled by, or under common control with such entity, but only so long as such control exists. For the purposes of this definition, “controlling”, “controlled”, and “control” mean the possession, directly (or indirectly through one or more intermediary entities), of the power to direct the management or policies of an entity, including through ownership of fifty percent (50%) or more of the voting securities of such entity (or, in the case of an entity that is not a corporation, ownership of fifty percent (50%) or more of the corresponding interest for the election of the entity’s managing authority).

“Agreed-On Excess Other Offset Amount” has the meaning set forth in Section 3.5(d)(i).

“Agreed-On Excess Section 5.8(a)(ii)(2) Offset Amount” has the meaning set forth in Section 3.5(a)(i).

“Agreed-On Excluded Payment Amount” has the meaning set forth in Section 3.9(a).

“Agreed-On Other Offset Amount” has the meaning set forth in Section 3.5(d)(i).

“Agreed-On Overpayment Amount” has the meaning set forth in Section 3.10(a).

“Agreed-On Section 5.8(a)(ii)(2) Offset Amount” has the meaning set forth in Section 3.5(a)(i).

“Agreed Portion” has the meaning set forth in Section 8.4(c).

“Alternative Instructions” has the meaning set forth in Section 3.1(b).

“Applicable Amount” has the meaning set forth in Section 3.2(i).

“Applicable Law” means any law, rule or regulation of any Governmental Authority, or judgment, order, writ, decree, permit or license of any Governmental Authority of competent jurisdiction applicable to that Person, property, transaction or event.

“Asserted Damages Amount” has the meaning set forth in Section 8.4(b).

“Assigned Rights” means all of CVT’s and its Affiliates’ right, title and interest in and to the following rights arising under the Astellas Agreement:

(a)

the right to receive (i) the TPG-Axon Royalty Interest and (ii) fifty percent (50%) of all Related Regadenoson Payments, and (iii) all Proceeds (as defined in the Code) of the amounts in (i) and (ii); and

(b)

the rights to further sublicense, assign, sell, pledge, contribute, or otherwise transfer such rights to receive, and ownership interests in, (i) the TPG-Axon Royalty Interest, (ii) fifty percent (50%) of all Related Regadenoson Payments, and (iii) all Proceeds (as defined in the Code) of the amounts in (i) and (ii).

For clarity, the Assigned Rights exclude all Liabilities of CVT under Section 3.4(c)(ii) of the Astellas Agreement.

“Astellas” means Astellas US LLC, a Delaware limited liability company and successor in interest to Fujisawa Healthcare, Inc. under the Astellas Agreement.

“Astellas Agreement” means the Collaboration and License Agreement dated as of July 10, 2000, by and between CVT and Fujisawa Healthcare, Inc. (predecessor in interest to Astellas US LLC), as amended on August 30, 2005 and January 1, 2006, and including any further amendments of the same as permitted or consented to under this Agreement.

“Astellas Notice” means the notice from CVT to Astellas delivered by CVT to Astellas in accordance with the Astellas Agreement substantially in the form of Exhibit 1 .

“Astellas [****]” has the meaning set forth in [****].

“Audit” has the meaning set forth in Section 3.11(b).

“Audit Notice” has the meaning set forth in Section 3.11(b).

“Audit Shortfall” has the meaning set forth in Section 3.11(b).

“Bill of Sale” means a Bill of Sale dated as of the Closing Date, executed by CVT and TPG-Axon and substantially in the form of Exhibit 2 .

“Breach” of a representation, warranty, covenant, obligation or other provision shall be deemed to have occurred if there is or has been any inaccuracy in or breach of, or any failure to comply with or perform such representation, warranty, covenant, obligation or other provision, and “Breach” shall be deemed to refer to any such inaccuracy, breach or failure.

“Business Day” means any day other than Saturday, Sunday or a statutory or civic holiday observed in Dublin, Ireland or Palo Alto, California.

“Calendar Quarter” means the consecutive three month periods in each Calendar Year that end on March 31, June 30, September 30 and December 31.

“Calendar Year” means the twelve (12) month period from January 1 through December 31.

“Claim Notice” has the meaning set forth in Section 8.4(a).

“Closing” has the meaning set forth in Section 2.2(a).

“Closing Date” has the meaning set forth in Section 2.2(a).

“Code” means the New York Uniform Commercial Code, as in effect from time to time; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect to TPG-Axon’s security interest in any Collateral or the precautionary security interest in the Assigned Rights is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.

“Collateral” means (i) all of CVT’s rights (but none of its obligations) under the Astellas Agreement (other than the Assigned Rights), (ii) all of CVT’s rights in and to the Joint Concentration Account and any and all financial assets, funds, monies, checks or other items held therein or credited thereto, solely for so long as such items are held therein or credited thereto, (iii) the Intellectual Property Collateral, and (iv) all Proceeds (as defined in the Code) of each of the foregoing. For clarity, upon transfer of any assets, funds, monies, checks or other items held in or credited to the Joint Concentration Account, including all Proceeds thereof, into the CVT Concentration Account as provided in this Agreement and the Deposit Agreement, such assets, funds, monies, checks or other items shall no longer be included in Collateral.

“Commercially Reasonable Manner” means the use of efforts, expertise and resources normally used by CVT for a product or compound owned by it or to which it has rights, which, as compared with Regadenoson, is of similar market potential at a similar stage in its development or product life, taking into account all reasonable relevant factors affecting the cost, risk and timing of development and the total potential of the compound or product, all as measured by the facts and circumstances at the time such efforts are due.

“Confidential Information” has the meaning ascribed to it in Section 4.1.

“Controlling Party” has the meaning set forth in Section 8.4(a).

“CVT Concentration Account” means the CVT Concentration Account (as defined in the Deposit Agreement) into which the CVT Royalty Interest, and any amounts that are not (a) the TPG-Axon Royalty Interest, (b) Proceeds (as defined in the Code) of (a), or (c) other amounts to which TPG-Axon is entitled pursuant to this Agreement that are paid into the Joint Concentration Account, are to be remitted as set forth in Section 3.1 and the Deposit Agreement.

“CVT Event of Default” has the meaning set forth in Section 7.2.

“CVT Indemnitees” means (a) CVT, (b) its current and future Affiliates, (c) the respective directors, employees, accountants, advisors, representatives and agents of any of the foregoing and (d) the respective successors, heirs and assigns of any of the Persons referred to in (a), (b) and (c) above.

“CVT Officer’s Certificate” has the meaning set forth in Section 3.2.

“CVT Royalty Interest” means the portion of the Regadenoson Royalty that CVT is entitled to receive from Astellas under the Astellas Agreement, and the portion of Related Regadenoson Payments that CVT is entitled to receive, which portion in each case, after giving effect to the TPG-Axon Royalty Interest, is fifty percent (50%).

“Damages” means any loss, damage, Liability, fee (including any reasonable legal fee, expert fee, accounting fee or advisory fee), charge, cost (including any reasonable cost of investigation and court cost) or expense arising from a claim, demand, settlement, judgment or award and regardless of whether such claim or demand is made by, or such settlement, judgment or award is owed to, an Indemnified Party or a Third Person.

“Deficient Payment” has the meaning set forth in Section 3.6.

“Deposit Agreement” means the Deposit and Account Control Agreement of even date herewith among the Parties and JPMorgan , substantially in the form of Exhibit 4 .

“Dispute Notice” has the meaning set forth in Section 9.2.

“Disputed Excluded Payment Amount” has the meaning set forth in Section 3.9(b).

“Disputed Other Offset Amount” has the meaning set forth in Section 3.5(d)(ii).

“Disputed Overpayment Amount” has the meaning set forth in Section 3.10(b).

“Disputed Section 5.8(a)(ii)(2) Offset Amount” has the meaning set forth in Section 3.5(a)(ii).

“Draft Instructions” has the meaning set forth in Section 3.1(b).

“Encumbrance” means any encumbrance, actual or contingent, fixed or floating, including any lien, charge, security interest, mortgage, option, pledge, assignment or claim of any other Person.

“Excluded Payments” means (i) the remaining milestone payment under Section 5.4 of the Astellas Agreement of twelve million dollars ($12,000,000), to be paid by Astellas to CVT, (ii) payments by Astellas for product development activities by CVT under the Astellas Agreement, (iii) payments to CVT by Astellas for [****]; (iv) payments by Astellas to CVT for sales of Regadenoson solely outside of the Territory; and (v) any other amounts that are not the Regadenoson Royalty or Related Regadenoson Payments or Proceeds (as defined in the Code) of either under this Agreement or other amounts to which TPG-Axon is entitled pursuant to this Agreement.

“FDA” means the United States Food and Drug Administration or any successor agency thereto.

“Final Instructions” has the meaning set forth in Section 3.1(b).

“GAAP” means generally accepted accounting principles in the United States in effect from time to time.

“Governmental Authority” means any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.

“Indemnified Party” has the meaning set forth in Section 8.4(b).

“Indemnification Demand” has the meaning set forth in Section 8.4(b).

“Intellectual Property Collateral” has the meaning set forth in the Intellectual Property Security Agreement.

“Intellectual Property Security Agreement” means the Intellectual Property Security Agreement between the Parties, substantially in the form of Exhibit 3 .

“IP Communication” has the meaning set forth in Section 6.2(c).

“Joint Concentration Account” means the Joint Concentration Account (as defined in the Deposit Agreement) into which all payments in respect of the Regadenoson Royalty and Related Regadenoson Payments are to be remitted as set forth in Section 3.1 and the Deposit Agreement.

“JPMorgan” means JPMorgan Chase Bank, N.A., or any successor entity thereto.

“Knowledge of CVT” means the actual knowledge of [****] CVT or any of its Affiliates as of the time such knowledge is being determined [****] (a) [****] or (b) [****].

“Liability” means any debt, obligation, duty or liability of any nature, regardless of whether such debt, obligation, duty or liability would be required to be disclosed on a balance sheet prepared in accordance with GAAP and regardless of whether such debt, obligation, duty or liability is immediately due and payable.

“Licensed Know-How” has the meaning set forth in the Astellas Agreement.

“Licensed Patent” has the meaning set forth in the Astellas Agreement.

“Licensed Product” has the meaning set forth in the Astellas Agreement.

“Licensed Technology” has the meaning set forth in the Astellas Agreement.

“Marketing Approval” means the written approval of an NDA by the FDA necessary for the commercial sale of Regadenoson in the United States.

“Material Adverse Effect” means (a) the effect of a material adverse change in the business, operations, assets, or prospects relating to Regadenoson in the Territory, (b) a material adverse effect on the validity or enforceability of any of the Transaction Documents, (c) a material adverse effect on the ability of CVT to perform any of its obligations under any of the Transaction Documents, (d) an adverse effect on the rights or remedies of TPG-Axon under any of the Transaction Documents, (e) an adverse effect on the right of CVT to receive any Regadenoson Royalty payments or Related Regadenoson Payments, (f) an adverse effect on the right of TPG-Axon to receive the TPG-Axon Royalty Interest, or (g) an adverse effect on the Assigned Rights.

“Material Contract” means any contract, agreement or other arrangement to which CVT or any of its Affiliates is a party or any of CVT’s or any of its Affiliates’ respective assets or properties are bound or committed (other than the Transaction Documents) and for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Effect.

“Non-controlling Party” has the meaning set forth in Section 8.4(a).

“Notified Party” has the meaning set forth in Section 8.4(a).

“Notifying Party” has the meaning set forth in Section 8.4(a).

“Offset” means any Section 3.4(c)(ii) Offset, Section 5.8(a)(ii)(2) Offset or Other Offset.

“Other Offset” has the meaning set forth in Section 3.5(d).

“Overpayment Amounts” has the meaning set forth in Section 3.10.

“Payment Obligation End Date” has the meaning set forth in Section 2.1(b)(ii).

“Person” means any natural person, corporation, trust, joint venture, association, unincorporated organization, cooperative, company, partnership, trust, limited liability company or government (domestic or foreign) or any agency or instrumentality thereof, or any other entity recognized by law.

“Primary Contact” has the meaning set forth in Section 3.14.

“Proceeding” means any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding and any informal proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or any arbitrator or arbitration panel.

“Purchase Price” has the meaning set forth in Section 2.1(b)(i).

“Regadenoson” means any product containing or constituting CVT 3146, or regadenoson (the chemical name and structure of which are set forth on Exhibit 5 ), [****] regardless of the [****] and regardless of [****].

“Regadenoson Net Sales” has the meaning set forth on Exhibit 6 .

“Regadenoson Royalty” means all royalties paid, owed, accrued or otherwise required to be paid by Astellas to CVT pursuant to Section 5.5 of the Astellas Agreement based on Regadenoson Net Sales. For the avoidance of doubt, the “Regadenoson Royalty” hereunder does not include any Excluded Payments.

“Related Regadenoson Payments” means and includes: (i) all amounts paid, owed, accrued or otherwise required to be paid to CVT [****] on account of [****] (ii) all amounts paid, owed, accrued or otherwise required to be paid to CVT [****] on account of [****] under the Astellas Agreement; (iii) all amounts paid, owed, accrued or otherwise required to be paid to CVT [****] to the extent such amounts [****] or are otherwise [****] (iv) all amounts paid, owed, accrued or otherwise required to be paid to CVT [****] in connection with [****] to the extent [****] or are otherwise [****] (v) all amounts paid, owed, accrued or otherwise required to be paid to CVT [****] based on [****] to the extent such amounts are [****] or are otherwise amounts [****] (vi) all amounts paid, owed, accrued or otherwise required to be paid to CVT with respect to any [****] and (vii) all amounts paid, owed, accrued or otherwise required to be paid to CVT and intended to reconcile accounts, adjust underpayments and collections relating to any payments of the Regadenoson Royalty or any of the payments under the foregoing clauses of this definition, [****]. For the avoidance of doubt, the “Related Regadenoson Payments” hereunder do not include any Excluded Payments.

“Response” has the meaning set forth in Section 8.4(c).

“Retained Regadenoson Rights and Obligations” has the meaning set forth in Section 2.1(c).

“Royalty Reports” has the meaning set forth in Section 3.2.

“SEC” means the United States Securities and Exchange Commission or any successor agency thereto.

“Section 3.4(c)(ii) Offset” has the meaning set forth in Section 3.5(c).

“Section 5.8(a)(ii)(2) Offset” has the meaning set forth in Section 3.5(a).

“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature and whatever called (including interest and penalties thereon) by any Governmental Authority, on whomsoever and wherever imposed, levied, collected, withheld or assessed.

“Term” means the period described in Section 7.1.

“Territory” has the meaning set forth in the Astellas Agreement.

“Third Person” means any Person, including a Governmental Authority, other than CVT, TPG-Axon or their respective Affiliates.

“Third Person Claim” has the meaning set forth in Section 8.4(a).

“TPG-Axon Concentration Account” means the TPG-Axon Concentration Account (as defined in the Deposit Agreement) into which (a) the TPG-Axon Royalty Interest, (b) all Proceeds (as defined in the Code) of (a), and (c) other amounts to which TPG-Axon is entitled pursuant to this Agreement, are to be remitted as set forth in Section 3.1 and the Deposit Agreement.

“TPG-Axon Event of Default ” has the meaning set forth in Section 7.3.

“TPG-Axon Indemnitees” means (a) TPG-Axon, (b) its current and future Affiliates, (c) the respective trustees, beneficiaries, members, directors, employees, accountants, advisors, representatives and agents of any of the foregoing and (d) the respective successors, heirs and assigns of any of the Persons referred to in (a), (b) and (c) above.

“TPG-Axon Royalty Interest” has the meaning set forth in Section 2.1(a).

“Transaction Documents” has the meaning set forth in Section 5.1(c).

“Valid Claim” has the meaning set forth in the Astellas Agreement.

ARTICLE 2

ROYALTY ASSIGNMENT AND SALE

2.1 Royalty Assignment and Sale.

(a) TPG-Axon Royalty Interest . In consideration for the payment of the Purchase Price and subject to the terms and conditions in this Agreement, effective as of the Closing Date, TPG-Axon purchases from CVT, and CVT sells, assigns, transfers, conveys and delivers to TPG-Axon, all of CVT’s right, title and interest to receive from Astellas fifty percent (50%) of the Regadenoson Royalty (the “ TPG-Axon Royalty Interest ”) and the other Assigned Rights, from the Closing Date and throughout the Term.

(b) Purchase Price .

(i)

In consideration for the sale, assignment, transfer, conveyance and delivery of the TPG-Axon Royalty Interest and the other Assigned Rights and subject to the terms and conditions in this Agreement, TPG-Axon shall pay CVT One Hundred Seventy-Five Million Dollars ($175,000,000) (the “ Purchase Price ”) on the Closing Date by wire transfer in immediately available funds to such account as may be specified by CVT in writing to TPG-Axon at least three (3) Business Days prior to the Closing.

(ii)

In addition, in the event that Astellas commences commercial sales of Regadenoson in the United States within six (6) months after the date that Marketing Approval is received, TPG-Axon shall pay CVT an additional Ten Million Dollars ($10,000,000) within five (5) Business Days after receiving notice (including sufficient details to permit TPG-Axon to confirm that such commercial sales have commenced, the date that such sales commenced and the date that Marketing Approval was received) from CVT that such event has occurred. Such payment shall be delivered by wire transfer in immediately available funds to the account specified by CVT pursuant to Section 2.1(b)(i), unless CVT specifies a different account to TPG-Axon at the time CVT provides the notice described in the immediately preceding sentence. TPG-Axon’s payment obligation under this Section 2.1(b)(ii) shall expire on the date that is six (6) months after the date that Regadenoson receives Marketing Approval if Astellas has not commenced commercial sales of Regadenoson within such six (6)-month period as provided under the Astellas Agreement (the “ Payment Obligation End Date ”), provided, however , that TPG-Axon shall still be obligated to pay CVT pursuant to this Section 2.2(b)(ii) if Astellas has commenced commercial sales of Regadenoson within such six (6)-month period and CVT provides notice to TPG-Axon promptly thereafter, even if CVT’s notice to TPG-Axon is sent or received by TPG-Axon after the six (6)-month period has ended.

(c) Retained Rights and Obligations . CVT retains all other rights and shall be responsible for all obligations under the Astellas Agreement, including all rights to the CVT Royalty Interest and all Liabilities of CVT under [****] (the “ Retained Regadenoson Rights and Obligations ”). TPG-Axon is not assuming and shall not be bound by any liabilities, debts or obligations of CVT of any kind or nature, whether known, unknown, accrued, absolute, fixed, contingent or otherwise, whether now existing or hereafter arising, and whether or not relating to Regadenoson or the Astellas Agreement.

(d) True Sale . CVT and TPG-Axon intend and agree that the sale, assignment, transfer, set-over, conveyance and delivery of the Assigned Rights be a true sale by CVT to TPG-Axon that is absolute and irrevocable and that provides TPG-Axon with the full benefits and detriments of ownership of the Assigned Rights, and neither CVT nor TPG-Axon intends the transactions contemplated hereunder to be, or for any purpose to be characterized as, a loan or other financial accommodation from TPG-Axon to CVT. Each of TPG-Axon and CVT waive any right to contest or otherwise assert that this Agreement is other than a true sale by CVT to TPG-Axon under Applicable Law, which waiver shall be enforceable against CVT and TPG-Axon in any bankruptcy or insolvency proceeding relating to, as applicable, CVT or TPG-Axon. The security interests granted pursuant to Section 6.7(a) of this Agreement are granted solely as a precaution against the possibility that the transaction might be characterized in some judicial or administrative proceeding as other than a “true sale,” notwithstanding the manifest intent and expectation of the Parties.

2.2 Closing.

(a) Closing Time and Place . The purchase and sale provided for in this Agreement (the “ Closing ”) will take place no later than three (3) Business Days after all closing conditions set forth in Sections 2.2(b) and (c) are fulfilled, satisfied or waived (as applicable), other than those which by their terms are to be fulfilled or satisfied on the Closing Date, at the offices of TPG-Axon’s counsel at Cooley Godward Kronish LLP, 4401 Eastgate Mall, San Diego, CA 92121, commencing at 8:00 a.m. (local time), unless TPG-Axon and CVT otherwise agree. The date of the Closing is referred to as the “ Closing Date .”

(b) TPG-Axon Closing Conditions . The obligations of TPG-Axon to close the transactions contemplated by this Agreement are subject to the fulfillment or satisfaction on and as of the Closing of each of the following conditions set forth in this Section 2.2(b) (any one or more of which may be waived by TPG-Axon, but only in a writing signed by TPG-Axon).

(i)

TPG-Axon shall have received a copy of the [****].

(ii)

The Astellas Notice shall have been delivered to Astellas in accordance with the terms of the Astellas Agreement.

(iii)

TPG-Axon shall have received a true sale opinion of Latham & Watkins LLP, special counsel to CVT, in form and substance reasonably satisfactory to TPG-Axon.

(iv)

CVT and JPMorgan shall have executed and delivered the Deposit Agreement.

(v)

CVT shall have executed and delivered the Intellectual Property Security Agreement.

(vi)

CVT shall have executed and delivered the Bill of Sale.

(vii)

The representations and warranties made by CVT in this Agreement shall be true and accurate in all material respects (except for representations and warranties that are already qualified as to materiality, in which case such representations and warranties shall be true and accurate in all respects) as of the Closing Date.

(viii)

All of the covenants and obligations that CVT is required to comply with or to perform at or prior to the Closing shall have been duly complied with and performed in all material respects.

(ix)

CVT shall have executed and delivered to TPG-Axon a certificate, executed by the Chief Executive Officer or Chief Financial Officer or other applicable officer of CVT, to the effect that the conditions specified in Section 2.2(b)(vii) and Section 2.2(b)(viii) are satisfied in all respects.

(x)

TPG-Axon shall have received from CVT’s Secretary or other applicable officer, a certificate having attached thereto resolutions approved by the Board of Directors of CVT authorizing the transactions contemplated hereby.

(xi)

TPG-Axon shall have received an opinion of Latham & Watkins LLP, special counsel to CVT, regarding the perfection of TPG-Axon’s security interest in the Collateral, in form and substance reasonably satisfactory to TPG-Axon.

(xii)

Appropriate financing statements and the Intellectual Property Security Agreement shall have been duly filed in the jurisdictions listed on Schedule 2.2(b)(xii).

(xiii)

TPG-Axon shall have received certified copies of recent date of searches in the jurisdictions listed on Schedule 2.2(b)(xiii)(A) for all effective financing statements and registrations which name CVT as debtor and, except as otherwise agreed in writing by TPG-Axon, such searches shall indicate that no such effective financing statements or registrations exist or that, for any that do exist, none cover any of the Collateral; and TPG-Axon shall also have received the results of searches of recent date in the jurisdictions listed on Schedule 2.2(b)(xiii)(B) for any tax lien and judgment lien filed against CVT or its property, which results, except as otherwise agreed to in writing by TPG-Axon, shall not show any such liens.

(c) CVT Closing Conditions . The obligations of CVT to close the transactions contemplated by this Agreement are subject to the fulfillment or satisfaction on and as of the Closing of each of the following conditions set forth in this Section 2.2(c) (any one or more of which may be waived by CVT, but only in a writing signed by CVT).

(i)

TPG-Axon and JPMorgan shall have executed and delivered the Deposit Agreement.

(ii)

TPG-Axon shall have executed and delivered the Intellectual Property Security Agreement.

(iii)

TPG-Axon shall have executed and delivered the Bill of Sale.

(iv)

The representations and warranties made by TPG-Axon in this Agreement shall be true and accurate in all material respects (except for representations and warranties that are already qualified as to materiality, in which case such representations and warranties shall be true and accurate in all respects) as of the Closing Date.

(v)

All of the covenants and obligations that TPG-Axon is required to comply with or to perform at or prior to the Closing shall have been duly complied with and performed in all material respects.

(vi)

TPG-Axon shall have executed and delivered to CVT a certificate, executed by an executive officer of TPG-Axon, to the effect that the conditions specified in Section 2.2(c)(iv) and Section 2.2(c)(v) are satisfied in all respects.

ARTICLE 3

PAYMENTS

3.1 Deposits and Instructions. The Parties acknowledge and agree that the Astellas Notice shall instruct Astellas to send all payments for the Regadenoson Royalty and all Related Regadenoson Payments to the Joint Concentration Account. The Parties also agree that CVT will not direct Astellas under Section 5.7(b) of the Astellas Agreement to send payments for the Regadenoson Royalty or any Related Regadenoson Payments to any bank account other than the Joint Concentration Account without TPG-Axon’s prior written consent. TPG-Axon and CVT shall follow the procedures set forth in Section 3.1(b) for determining Final Instructions, and TPG-Axon shall only send Final Instructions that are mutually agreed to by the Parties or deemed accepted by TPG-Axon in accordance with Section 3.1(b) to JPMorgan as Account

Instructions, in each case other than [****] (during which time, the Parties acknowledge and agree, [****]. The Parties further acknowledge and agree that, if a [****] exists under this Agreement [****] without [****] and such [****] may provide [****] that are consistent with TPG-Axon’s ownership of the Assigned Rights. During any [****] under this Agreement [****] the Parties shall continue to perform their obligations under this Section 3.1 (other than, with respect to Section 3.1(b), TPG-Axon) and under the other Sections of this Article 3 to confirm the accuracy of payments made to the Joint Concentration Account and the appropriate allocation of such payments in accordance with this Agreement (including this Article 3), but such activities shall not in any way limit or restrict [****] that provide for [****] that are consistent with TPG-Axon’s ownership of the Assigned Rights. The Parties further agree as follows:

(a) The Deposit Agreement shall provide that all amounts in the Joint Concentration Account shall be held in such account until the end of the applicable Calendar Quarter in which they are received, unless JPMorgan receives contrary Final Instructions or Alternative Instructions from TPG-Axon in accordance with Section 3.1(b) [****] prior to expiration of such Calendar Quarter. The Parties further agree, and the Deposit Agreement shall further provide that, upon expiration of such Calendar Quarter, unless JPMorgan receives [****] in accordance with Section 3.1(b) [****] all amounts held in the Joint Concentration Account upon expiration of such Calendar Quarter shall be transferred from the Joint Concentration Account, such that fifty percent (50%) of all such amounts are transferred to the CVT Concentration Account and fifty percent (50%) of all such amounts are transferred to the TPG-Axon Concentration Account, on account of each Party’s respective ownership interest in the Regadenoson Royalty and Related Regadenoson Payments.

(b) Concurrently with the Royalty Reports and CVT Officer’s Certificates provided to TPG-Axon pursuant to Sections 3.2, 3.3 and 3.4, as applicable, CVT shall prepare and send to TPG-Axon a draft of CVT’s proposed instructions to JPMorgan detailing what amounts (including reasonable supporting calculations) deposited in the Joint Concentration Account and corresponding to such Royalty Reports and CVT Officer’s Certificates should be transferred from the Joint Concentration Account to each of the CVT Concentration Account and the TPG-Axon Concentration Account, consistent with the terms and conditions of this Agreement (including, without limitation, this Article 3) and the Deposit Agreement (“ Draft Instructions ”). Any Draft Instructions mutually agreed upon by the Parties and any Draft Instructions deemed to be accepted by TPG-Axon under this Section 3.1(b) shall be referred to herein as the “ Final Instructions. ” TPG-Axon shall respond to CVT in writing within [****] with respect to any Draft Instructions from CVT hereunder, indicating whether or not TPG-Axon agrees with such Draft Instructions as Final Instructions. If TPG-Axon so notifies CVT that TPG-Axon does not agree with the Draft Instructions, the Parties shall attempt to reach agreement in writing on Draft Instructions as promptly as possible, consistent with the [****] time periods set forth in Sections 3.5, 3.9 and 3.10 for the Parties to resolve disagreements regarding payment calculations. If TPG-Axon fails to provide any notice

to CVT within the [****] time period set forth above, TPG-Axon shall be deemed to have accepted the Draft Instructions as Final Instructions. TPG-Axon shall, within [****] of its deemed acceptance or the Parties’ mutual agreement upon Final Instructions in accordance with this Section 3.1(b), send the Final Instructions to JPMorgan as Account Instructions. In addition, if CVT is delivering Draft Instructions to TPG-Axon hereunder prior to the end of the then-current quarter but later than the [****] prior to the expiration of such applicable Calendar Quarter, CVT shall send TPG-Axon together with the Draft Instructions a set of alternative instructions (“ Alternative Instructions ”) instructing JPMorgan to retain in the Joint Concentration Account at the expiration of the applicable Calendar Quarter (but not at the expiration of any ensuing Calendar Quarter) the amounts deposited in the Joint Concentration Account and corresponding to such Royalty Reports and CVT Officer’s Certificates, pending determination by the Parties of the treatment of those amounts in accordance with the other provisions of this Agreement. In the event TPG-Axon receives any Alternative Instructions from CVT hereunder, TPG-Axon may, prior to the expiration of the applicable Calendar Quarter to which such Alternative Instructions pertain, send the Alternative Instructions to JPMorgan as Account Instructions, and concurrently notify CVT in writing that TPG-Axon has done so.

(c) Notwithstanding any other provisions of this Section 3.1, each Party may communicate directly with JPMorgan with respect to ministerial matters not relating to the disposition, transfer, withdrawal, disbursement or redemption of any amounts in or credits to the Joint Concentration Account (e.g., to notify JPMorgan of such Party’s change of address or contact party, etc.), without the other Party’s prior consent to or agreement upon the contents of such communication, provided that the Party so communicating to JPMorgan will concurrently provide to the other Party a copy of such ministerial communication.

3.2 Royalty Reports. (A) Within [****] of CVT’s receipt of any report of Regadenoson Net Sales provided by Astellas pursuant to Section 5.7 of the Astellas Agreement (each, a “ Royalty Report ”) or (B) if the amount relating to the applicable Royalty Report is not deposited into the Joint Concentration Account by Astellas prior to or concurrently with (or within [****] thereafter) the delivery to CVT of the applicable Royalty Report, within [****] of CVT’s Knowledge of a deposit being made into the Joint Concentration Account or, if later, receipt of a notice from JPMorgan pursuant to the Deposit Agreement confirming that Astellas has deposited an amount into the Joint Concentration Account, which deposit or amount, as applicable, relates to the applicable Royalty Report (and which Royalty Report was previously received by CVT), CVT shall (a) to the extent delivery of such Royalty Report to TPG-Axon is not prohibited by obligations of confidentiality between Astellas and CVT contained in the Astellas Agreement, provide a copy of such Royalty Report to TPG-Axon or (b) to the extent delivery of such Royalty Report is prohibited by obligations of confidentiality between Astellas and CVT contained in the Astellas Agreement, provide a certificate (a “ CVT Officer’s Certificate ”) executed by the Chief Executive Officer or Chief Financial Officer, or other applicable officer of CVT, dated the date of delivery, certifying, to the Knowledge of CVT:

(i)

whether the amount deposited into the Joint Concentration Account for the applicable period for which payments are provided by Astellas concurrently with the delivery of the applicable Royalty Report by Astellas to CVT equals the amount of the Regadenoson Royalty to which CVT is entitled under the Astellas Agreement (the “ Applicable Amount ”);

(ii)

to the extent the amount so deposited into the Joint Concentration Account is not the Applicable Amount, the basis for the disparity (e.g., a Deficient Payment, Astellas including other amounts owing from it to CVT under the Astellas Agreement, such as, but not limited to, payments under [****] or other Excluded Payments in the amount so deposited in the Joint Concentration Account or Astellas sending payments for the Regadenoson Royalty to CVT rather than the Joint Concentration Account) and the amount of the disparity;

(iii)

whether the amount so deposited into the Joint Concentration Account was subject to any Offset by Astellas and, if so, the basis for the Offset (including the applicable section of the Astellas Agreement on which the Offset was based, or, if applicable, any other basis for the Offset) and its amount;

(iv)

whether the amount so deposited into the Joint Concentration Account was subject to any [****] and, if so, the amount of [****];

(v)

whether the amount so deposited into the Joint Concentration Account includes any Related Regadenoson Payments or any other amounts (other than amounts otherwise described in such CVT Officer’s Certificate) to which TPG-Axon is entitled under this Agreement and, if so, their basis and amount;

(vi)

whether the amount so deposited into the Joint Concentration Account is less than the Applicable Amount due to the failure of Astellas to make the applicable payment to the Joint Concentration Account or CVT, in which case such certificate shall also describe in reasonable detail the [****] and CVT’s [****]; and

(vii)

whether the amount so deposited into the Joint Concentration Account included any Excluded Payments or Overpayment Amounts, and, if so, their basis and amount.

To the extent the amount so deposited into the Joint Concentration Account is otherwise different than the Applicable Amount, such certificate shall also describe in reasonable detail the [****] to ensure that all amounts required to be sent to the Joint Concentration Account by Astellas pursuant to the Astellas Notice or CVT pursuant to this Agreement are so sent and [****].

3.3 Related Regadenoson Payments. Within [****] of any Related Regadenoson Payments, or any other amounts to which TPG-Axon is entitled under this Agreement, being deposited in the Joint Concentration Account in circumstances where Regadenoson Royalty payments are not also deposited, CVT shall deliver to TPG-Axon a CVT Officer’s Certificate dated the date of delivery, certifying as to the matters covered by the CVT Officer’s Certificate under Section 3.2, with appropriate adjustments to reflect that the amount deposited consisted of Related Regadenoson Payments and/or other amounts to which TPG-Axon is entitled under this Agreement rather than Regadenoson Royalty payments.

3.4 CVT’s Receipt of Payments. Upon receipt of any payments by CVT for any Regadenoson Royalty or any Related Regadenoson Payments or any other amounts to which TPG-Axon is entitled under this Agreement, CVT shall hold (a) fifty percent (50%) of such payments in trust for the benefit of TPG-Axon on account of its ownership of the Assigned Rights, in the case of any payments for any Regadenoson Royalty or any Related Regadenoson Payment or (b) all of such amounts in trust for the benefit of TPG-Axon, in the case of other amounts (if any) to which TPG-Axon is entitled under this Agreement, and shall deposit all of such payments into the Joint Concentration Account as follows: (i) within [****] of CVT’s receipt of such payments to the extent the payments received include any on-time quarterly Regadenoson Royalty payment pursuant to Section 5.7 of the Astellas Agreement or (ii) otherwise within [****] of the receipt by CVT of such payments. Concurrently with the deposit of such payments, CVT shall deliver to TPG-Axon a CVT Officer’s Certificate dated the date of delivery, certifying as to the matters covered by the CVT Officer’s Certificate under Section 3.2 or Section 3.3, as applicable, and with appropriate adjustments to reflect that the amount being deposited is being deposited by CVT rather than Astellas.

3.5 Offsets. Because TPG-Axon is purchasing the Assigned Rights, the Parties acknowledge that the Assigned Rights are subject to the terms and conditions of the Astellas Agreement relevant to the Assigned Rights. The Parties intend this Section 3.5 to address how certain potential offset and/or reduction provisions under the Astellas Agreement (each specified below) or other potential offsets between CVT and Astellas (if any) will affect the Assigned Rights and payments made on account thereof for purposes of this Agreement. Pursuant to Section 6.1(a), TPG-Axon must consent to [****] The Parties intend and agree that such [****] will [****] pursuant to this Agreement.

(a) Regadenoson-Related Section 5.8(a)(ii)(2) Offsets . In the event that Astellas offsets against a portion of the Regadenoson Royalty under Section 5.8(a)(ii)(2) of the Astellas Agreement any monies, upfront fees, licensing fees, royalties and

milestones paid to a Third Person (other than lump sum payments covered by Section 5.8(a)(ii)(1) of the Astellas Agreement) (a “ Section 5.8(a)(ii)(2) Offset ”), and provided that the applicable Section 5.8(a)(ii)(2) Offset is due to licenses, fees and other payments permitted under such Section 5.8(a)(ii)(2) in connection with the development, manufacture, export, import, use, offer for sale and/or sale of Regadenoson in the Territory, the following provisions shall apply:

(i)

in connection with the delivery of any Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.4, as applicable, that includes a Section 5.8(a)(ii)(2) Offset, the Parties’ Primary Contacts will discuss the amount of such Section 5.8(a)(ii)(2) Offset and attempt to agree in writing on (A) the portion of such Section 5.8(a)(ii)(2) Offset that is the correct amount of such Section 5.8(a)(ii)(2) Offset under the Astellas Agreement (any such agreed upon amount being referred to as the “ Agreed-On Section 5.8(a)(ii)(2) Offset Amount ”) and (B) the portion of such Section 5.8(a)(ii)(2) Offset, if any, that is in excess of the correct amount of such Section 5.8(a)(ii)(2) Offset under the Astellas Agreement and the amount of such excess (any such agreed upon amount being referred to as the “ Agreed-On Excess Section 5.8(a)(ii)(2) Offset Amount ”);

(ii)

to the extent the Parties’ Primary Contacts are unable to agree on the correct amount for a Section 5.8(a)(ii)(2) Offset or as to the amount by which any amount taken as an offset under Section 5.8(a)(ii)(2) of the Astellas Agreement exceeds the correct Section 5.8(a)(ii)(2) Offset (any such disputed amounts being referred to as the “ Disputed Section 5.8(a)(ii)(2) Offset Amounts ”), within [****] following delivery of the applicable Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.4, as applicable, each Party shall designate an executive officer to discuss the matter with an executive officer of the other Party and attempt to reach agreement in writing on the Agreed-On Section 5.8(a)(ii)(2) Offset Amount and Agreed-On Excess Section 5.8(a)(ii)(2) Offset Amount within [****] following the end of the prior [****] period (and, if they agree upon the same during such period, such amounts shall no longer be considered Disputed Section 5.8(a)(ii)(2) Offset Amounts but shall become Agreed-On Section 5.8(a)(ii)(2) Offset Amounts and Agreed-On Excess Section 5.8(a)(ii)(2) Offset Amounts);

(iii)

the payments which TPG-Axon is entitled to in payment of the TPG-Axon Royalty Interest shall be reduced based on the applicable Section 5.8(a)(ii)(2) Offset to the extent of the amount calculated by multiplying such Section 5.8(a)(ii)(2) Offset (including

the Agreed-On Section 5.8(a)(ii)(2) Offset Amount, any Agreed-On Excess Section 5.8(a)(ii)(2) Offset Amount and any Disputed Section 5.8(a)(ii)(2) Offset Amount) by [****] by a [****] under the Astellas Agreement for such Calendar Quarter (including, for the avoidance of doubt, all [****]);

(iv)

in the event any Agreed-On Excess Section 5.8(a)(ii)(2) Offset Amount exists, [****];

(v)

In the event Disputed Section 5.8(a)(ii)(2) Offset Amounts exist following expiration of the applicable time period(s) utilized by the Parties under Section 3.5(a)(i) or (ii), then [****]; and

(vi)

In the event any Disputed Section 5.8(a)(ii)(2) Offset Amounts exist following the expiration of the applicable time period(s) utilized by the Parties under Section 3.5(a)(i) and (ii), each Party is free to pursue a resolution of such dispute with the other Party, along with any related matters, in the judicial system (without having to comply with the dispute resolution procedures set forth in Section 9.2) or to otherwise exercise any right or remedy such Party may have against the other Party pursuant to this Agreement.

(b) Other Section 5.8(a)(ii)(2) Offsets (If Any). In the event that, notwithstanding CVT’s covenant set forth in Section 6.5(o) relating to any offset under Section 5.8(a)(ii)(2) of the Astellas Agreement for any Licensed Product other than Regadenoson in the Territory, a Section 5.8(a)(ii)(2) Offset occurs and such Section 5.8(a)(ii)(2) Offset is taken by Astellas due to licenses, fees and other payments permitted under Section 5.8(a)(ii)(2) of the Astellas Agreement in connection with the development, manufacture, export, import, use, offer for sale and/or sale of any Licensed Product other than Regadenoson in the Territory, then, within [****] following delivery of the applicable Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.4, as applicable, that indicates such Section 5.8(a)(ii)(2) Offset, CVT will, in lieu of its indemnification obligations set forth in Section 8.2, pay directly to TPG-Axon into the TPG-Axon Concentration Account (and not into the Joint Concentration Account) an amount equal to the amount by which TPG-Axon’s payments for the Regadenoson Royalty were reduced based on such Section 5.8(a)(ii)(2) Offset. If CVT makes a payment to TPG-Axon pursuant to this Section 3.5(b), and if [****] for which CVT made such payment hereunder, CVT shall [****]

(c) Section 3.4(c)(ii) Offsets . In the event that, notwithstanding CVT’s covenant set forth in Section 6.5(o), Astellas offsets or deducts CVT’s [****] for [****] against a portion of the Regadenoson Royalty pursuant to Section 3.4(c)(ii) of the Astellas Agreement (a “ Section 3.4(c)(ii) Offset ”), then within [****] following the delivery of the applicable Royalty Report or CVT Officer’s Certificate under Section 3.2 or 3.4, as applicable, that indicates such Section 3.4(c)(ii) Offset, CVT will, in lieu of its

indemnification obligations set forth in Section 8.2, pay directly to [****]. If CVT makes a payment to TPG-Axon pursuant to this Section 3.5(c), and if [****] for which CVT made such payment hereunder, CVT shall [****].

(d) Other Offsets . In the event that, notwithstanding [****] Astellas offsets a portion of the Regadenoson Royalty under any provision of the Astellas Agreement [****] or Astellas offsets [****] CVT or any of its Affiliates and Astellas or any of its Affiliates, [****] (any such offset, an “ Other Offset ”), the following provisions shall apply:

(i)

in connection with the delivery of any Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.4, as applicable, that includes an Other Offset, the Parties’ Primary Contacts will discuss the nature of the CVT obligation to Astellas giving rise to such Other Offset and the amount of such Other Offset and attempt to agree in writing on (A) whether an actual CVT obligation to Astellas exists that gives rise to such Other Offset and the portion of such Other Offset that correctly represents an actual obligation of CVT to Astellas and the amount of such Other Offset (any such agreed upon amount being referred to herein as the “ Agreed-On Other Offset Amount ”) and (B) the portion of such Other Offset, if any, that is in excess of the correct amount of such Other Offset (any such agreed upon amount being referred to herein as the “ Agreed-On Excess Other Offset Amount ”);

(ii)

to the extent the Parties’ Primary Contacts are unable to agree on whether an actual CVT obligation to Astellas exists giving rise to such Other Offset, or the correct amount for an Other Offset or as to the amount by which any amount taken as an offset exceeds the correct Other Offset (any such disputed amounts being referred to as the “ Disputed Other Offset Amount s”), within [****] following delivery of the applicable Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.4, as applicable, each Party shall designate an executive officer to discuss the matter with an executive officer of the other Party and attempt to reach agreement in writing on the Agreed-On Other Offset Amount and the Agreed-On Excess Other Offset Amount within [****] following the end of the prior [****] period (and, if they agree upon the same during such period, such amounts shall no longer be Disputed Other Offset Amounts but shall become Agreed-On Other Offset Amounts and Agreed-On Excess Other Offset Amounts);

(iii)

in the event of any Other Offset, the payments which TPG-Axon is entitled to in payment of the TPG-Axon Royalty Interest shall be reduced based on the applicable Other Offset to the extent of the amount calculated by [****] by [****] and CVT will, within [****] of the

Parties’ agreeing in writing on the amount of such Agreed-On Other Offset Amount, in lieu of its indemnification obligations set forth in Section 8.2, pay directly to [****]. If CVT makes a payment to TPG-Axon pursuant to this Section 3.5(d)(iii), and [****] for which CVT made such payment hereunder, [****];

(iv)

in the event any Agreed-On Excess Other Offset Amount exists, CVT will [****];

(v)

In the event Disputed Other Offset Amounts exist following expiration of the applicable time period(s) utilized by the Parties under Section 3.5(d)(i) or (ii), then [****];

(vi)

In the event any Disputed Other Offset Amounts exist following the expiration of the applicable time period(s) utilized by the Parties under Section 3.5(d)(i) and (ii), each Party is free to pursue a resolution of such dispute with the other Party, along with any related matters, in the judicial system (without having to comply with the dispute resolution procedures set forth in Section 9.2) or to otherwise exercise any right or remedy such Party may have against the other Party pursuant to this Agreement.

3.6 Deficient Payments and Late Payments . In the event that any Regadenoson Royalty payment or Related Regadenoson Payment or other payment to which TPG-Axon is entitled under this Agreement is made when due but is less than the aggregate Regadenoson Royalty or Related Regadenoson Payment or other payment then due under the Astellas Agreement or is entirely not made when due (and such shortfall or late payment is not because of an Offset addressed in Section 3.5(a), Section 3.5(b), Section 3.5(c) or Section 3.5(d) above or because of [****] (in any case, a “ Deficient Payment ”), then (a) CVT, within [****] of the delivery of any Royalty Report or CVT Officer’s Certificate under Section 3.2, Section 3.3 or Section 3.4, as applicable, that indicates a Deficient Payment or within [****] of when CVT otherwise has Knowledge of a Deficient Payment, will notify TPG-Axon in writing regarding the occurrence of the Deficient Payment and the details of the deficiency; and (b) CVT will [****].

3.7 [****] Matters.

(a) In the event of any [****] of any of its [****] being collectively referred to as [****], CVT, at [****] and at the [****], will promptly [****] which [****] and shall thereafter [****]. Any [****] will be [****] where, subject, in each case, to TPG-Axon’s rights with respect to Account Instructions [****] after [****] of [****] for the [****] in accordance with Section 3.1 and the Deposit Agreement, such [****] shall be [****] in accordance with the provisions of Section 3.1 and the Deposit Agreement.

(b) In the event any [****] CVT may, in its sole discretion, [****] in connection with such [****] if any, by [****] which [****] may include [****] CVT shall notify TPG-Axon in writing if it intends to [****]. If CVT [****] including any [****] CVT will be entitled to [****] with respect to such [****] and CVT will then [****] any amounts that CVT [****] or otherwise pursuant to any [****] with respect to such [****]. Such [****] will then be [****] in accordance with the provisions of Section 3.1 and the Deposit Agreement.

(c) Nothing set forth in this Section 3.7 or Section 6.5(d) shall [****] with regard to any [****] that is not covered by this Agreement.

3.8 Post-Termination Royalty Payments . If, during the Term, the Astellas Agreement is terminated and following such termination Astellas continues to pay royalties to the Joint Concentration Account and/or CVT on post-termination Regadenoson Net Sales in the Territory or is obligated under the Astellas Agreement to continue to pay such royalties, TPG-Axon will continue to be entitled to the TPG-Axon Royalty Interest under this Agreement as if such termination had not occurred. In addition, if, during the Term, the Astellas Agreement is terminated (either in whole or in part, or only with respect to a particular country or countries) and the terminated rights to Regadenoson revert to CVT, then CVT will: (a) use good faith, best efforts to either sublicense or divest the reverted rights to Regadenoson to Third Persons reasonably acceptable to TPG-Axon or commercially sell Regadenoson itself and through its Affiliates in a manner and on terms, in either case, that will reasonably likely result in an economic recovery from such rights that is commensurate with that under the Astellas Agreement and (b) negotiate in good faith and enter into with TPG-Axon an agreement that provides TPG-Axon with a royalty on post-termination Regadenoson sales (if any) and a percentage of Regadenoson outlicensing/disposition proceeds (if any) that is commensurate with the TPG-Axon Royalty Interest.

3.9 Excluded Payments. The Parties recognize that it is possible that Astellas may deposit into the Joint Concentration Account amounts that are Excluded Payments. Accordingly the remainder of this Section 3.9 shall apply where Astellas has deposited into the Joint Concentration Account any Excluded Payment.

(a) In connection with the delivery of any Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.3, as applicable, that includes an Excluded Payment, the Parties’ Primary Contacts will discuss the amount of such Excluded Payment and attempt to agree in writing on the portion of the amount deposited by Astellas into the Joint Concentration Account that correctly represents an actual Excluded Payment, and the amount thereof (any such agreed upon amount being referred to herein as the “ Agreed-On Excluded Payment Amount ”).

(b) To the extent the Parties’ Primary Contacts are unable to agree on the correct amount of any Excluded Payment (any such disputed amounts being referred to as the “ Disputed Excluded Payment Amounts ”), within [****] following delivery of the applicable Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.3,

as applicable, each Party shall designate an executive officer to discuss the matter with an executive officer of the other Party and attempt to reach agreement in writing on the Agreed-On Excluded Payment Amount within [****] following the end of the prior [****] period (and, if they agree upon the same during such period, such amount shall no longer be Disputed Excluded Payment Amounts but shall become Agreed-On Excluded Payment Amounts).

(c) With respect to the amount of any Agreed-On Excluded Payment Amount deposited into the Joint Concentration Account, the Parties agree that, subject to TPG-Axon’s rights with respect to Account Instructions during a CVT Event of Default as set forth in Section 3.1, the Final Instructions shall require JPMorgan to transfer one hundred percent (100%) of the Agreed-On Excluded Payment Amount from the Joint Concentration Account into the CVT Concentration Account before effecting any other transfer from the Joint Concentration Account provided for in such Final Instructions.

(d) In the event Disputed Excluded Payment Amounts exist following the expiration of the applicable time period(s) utilized by the Parties under Sections 3.9(a) and (b), each Party is free to pursue a resolution of such dispute with the other Party, along with any related matters, in the judicial system (without having to comply with the dispute resolution procedures set forth in Section 9.2) or to otherwise exercise any right or remedy such Party may have against the other Party pursuant to this Agreement.

3.10 Overpayments. The Parties recognize that it is possible that Astellas may deposit into the Joint Concentration Account or may pay directly to CVT amounts with respect to the Regadenoson Royalty or the Related Regadenoson Payments that exceed amounts actually due to CVT under the Astellas Agreement at such time (such amounts being referred to herein as “ Overpayment Amounts ”). Accordingly the remainder of this Section 3.10 shall apply where Astellas has deposited into the Joint Concentration Account any Overpayment Amounts.

(a) In connection with the delivery of any Royalty Report or CVT Officer’s Certificate under Section 3.2, Section 3.3 or Section 3.4, as applicable, that includes any Overpayment Amounts, the Parties’ Primary Contacts will discuss the amount of such Overpayment Amounts and attempt to agree in writing on (i) the portion of the amount deposited by Astellas into the Joint Concentration Account that correctly represents the portion, if any, of the payment deposited by Astellas into the Joint Concentration Account that is an overpayment with respect to the Regadenoson Royalty or the Related Regadenoson Payments, and the amount thereof (any such agreed upon amount being referred to herein as the “ Agreed-On Overpayment Amount ”).

(b) To the extent the Parties’ Primary Contacts are unable to agree on the correct amount for any Overpayment Amount (any such disputed amounts being referred to as the “ Disputed Overpayment Amounts ”), within [****] following delivery of the applicable Royalty Report or CVT Officer’s Certificate under Section 3.2, Section 3.3

or Section 3.4, as applicable, each Party shall designate an executive officer to discuss the matter with an executive officer of the other Party and attempt to reach agreement in writing on the Agreed-On Overpayment Amount within [****] following the end of the prior [****] period (and, if they agree upon the same during such period, such amount shall no longer be a Disputed Overpayment Amount but shall become an Agreed-On Overpayment Amount).

(c) With respect to the amount of any Agreed-On Overpayment Amount deposited into the Joint Concentration Account, the Parties agree that, subject to TPG-Axon’s rights with respect to Account Instructions during a CVT Event of Default as set forth in Section 3.1, at CVT’s election, the agreed upon Final Instructions shall require JPMorgan either (i) to transfer the full amount of such Overpayment Amount from the Joint Concentration Account to an account designated by Astellas to CVT, or (ii) to retain such Overpayment Amount in the Joint Concentration Account and distribute it in accordance with Section 3.1(a) as if it were the Regadenoson Royalty or a Related Regadenoson Payment and had been held in the Joint Concentration Account until the expiration of the applicable Calendar Quarter, in which case the Parties shall each credit the portion of such Overpayment Amount they each so receive against the portion of future Regadenoson Royalties and Related Regadenoson Payments that will become due to each Party pursuant to this Agreement in connection with future payments by Astellas of Regadenoson Royalties under the Astellas Agreement.

(d) In the event Disputed Overpayment Amounts exist following the expiration of the applicable time periods utilized by the Parties under Sections 3.10(a) and (b), each Party is free to pursue a resolution of such dispute with the other Party, along with any related matters, in the judicial system (without having to comply with the dispute resolution procedures set forth in Section 9.2) or to otherwise exercise any right or remedy such Party may have against the other Party pursuant to this Agreement.

3.11 CVT’s Record Keeping; TPG-Axon’s Audit Rights.

(a) Records . CVT and its Affiliates shall, consistent with GAAP and their respective internal financial control and reporting practices and procedures, keep and maintain for a period of [****] years from the end of the applicable Calendar Year (except as otherwise provided herein) accounts and records of all reports and data received by CVT from Astellas reasonably required to verify and calculate the portion of the Regadenoson Royalty and the Related Regadenoson Payments to which TPG-Axon is entitled under this Agreement.

(b) Audit of Astellas . CVT agrees that it shall, at the written request of TPG-Axon and at TPG-Axon’s expense (if not paid for by Astellas under the Astellas Agreement), promptly exercise its rights under Section 6.1 of the Astellas Agreement to conduct an audit of Astellas with respect to payments to CVT of the Regadenoson Royalty and Related Regadenoson Payments (an “ Audit ”). No more than one Audit may be conducted under this Section 3.11 in any Calendar Year, whether initiated by CVT or at TPG-Axon’s request as set forth in this Section 3.11.

At any time that CVT wishes to exercise CVT’s rights to an Audit (other than pursuant to a request by TPG-Axon), CVT shall give TPG-Axon written notice (an “ Audit Notice ”) of its desire so to do. Within [****] of receipt of an Audit Notice, TPG-Axon shall provide CVT with written notice of its election to participate in the design of the Audit, and CVT and TPG-Axon shall share equally in the costs of such Audit. In the event that TPG-Axon does not respond to an Audit Notice within such [****] period or advises CVT that it does not desire to participate in the design of the Audit, such Audit shall be at CVT’s sole expense (if not paid for by Astellas under the Astellas Agreement).

All Audits will be conducted by CVT using any nationally recognized independent public accounting firm agreed to between CVT and TPG-Axon, and in accordance with the requirements of the Astellas Agreement. To the extent not prohibited by obligations of confidentiality between CVT and Astellas contained in the Astellas Agreement, TPG-Axon shall receive a copy of the results of such Audit (i.e., the actual amount of Regadenoson Royalty and Related Regadenoson Payments during the Calendar Year in question, and the details of any discrepancies between the Regadenoson Royalty and Related Regadenoson Payments that were paid to TPG-Axon and the Regadenoson Royalty and Related Regadenoson Payments that should have been paid). To the extent delivery of the results of any Audit is prohibited by obligations of confidentiality between CVT and Astellas contained in the Astellas Agreement, then, within [****] of CVT’s receipt of the results of such Audit, CVT shall deliver to TPG-Axon a CVT Officer’s Certificate, dated the date of delivery, certifying (i) that the results of such Audit indicate that there is no discrepancy between the Regadenoson Royalty and Related Regadenoson Payments that were paid to TPG-Axon and the Regadenoson Royalty and Related Regadenoson Payments that should have been paid to TPG-Axon for the Calendar Year in question, or (ii) in the event any such discrepancy exists, that there is a discrepancy. If an Audit indicates that any Regadenoson Royalty or Related Regadenoson Payments that were paid to TPG-Axon during any Calendar Year in question were less than the Regadenoson Royalty or Related Regadenoson Payments that should have been paid to TPG-Axon for such Calendar Year (“ Audit Shortfall ”), CVT will [****].

3.12 Taxes . Any withholding or other Tax that is required by Applicable Law to be withheld on behalf of TPG-Axon with respect to the Regadenoson Royalty or Related Regadenoson Payments to which it is entitled under this Agreement shall, to the extent such payments are being made by CVT to the Joint Concentration Account, be deducted by CVT from such payment and remitted to the proper Tax authority. CVT shall promptly furnish TPG-Axon with written evidence of its withholding and remittance of any such Taxes.

3.13 Interest . Time for any payments hereunder shall be of the essence. Interest shall accrue on any amount overdue hereunder (from the date such payment is due through and including the date upon which full payment is made), including all payments in respect of the Regadenoson Royalty or Related Regadenoson Payments pursuant to this Agreement and all payments under Section 2.1(b)(ii), at the lesser of (a) the annual prime rate as reported by the Wall Street Journal, Eastern U.S. Edition, or any other reputable publication mutually agreed to by the Parties on the date such payment is due, plus an additional [****] or (b) the maximum annual rate permitted by Applicable Law, such interest to begin accruing on a daily basis on the basis of a 360-day year from the date due, and shall accrue both before and after judgment. Payment of accrued interest will accompany payment of the outstanding payment. For the avoidance of doubt, this Section 3.13 does not apply to any payments (or deficiencies in such payments) from Astellas to CVT (whether into the Joint Concentration Account or directly to CVT) and nothing in this Section 3.13 is intended to modify the other provisions of this Agreement with respect to Astellas [****].

3.14 Primary Contacts . Within [****] after the Closing Date, CVT and TPG-Axon will each appoint, and notify the other of, a person who will serve as such Party’s main contact to, and for, the other Party with regard to matters affecting the Parties’ relationship under this Agreement (each a “ Primary Contact ”). The Primary Contacts (or their designees) will meet, by phone or in person, as necessary to discuss and attempt to resolve any matters related to this Agreement. A Party may change its Primary Contact at any time, but will give notice to the other Party of any such change as soon as practical.

3.15 Joint Concentration Account Fees and Expenses.

(a) TPG-Axon and CVT shall equally share all fees, expenses and charges of JPMorgan by instructing JPMorgan to debit half of each such fee, expense or charge from the CVT Concentration Account (as defined in the Deposit Agreement) and half of each such fee, expense or charge from the TPG-Axon Concentration Account (as defined in the Deposit Agreement). In addition, TPG-Axon and CVT shall share equally any indemnity obligations under the Deposit Agreement.

(b) Except as set forth in Section 11(a) of the Deposit Agreement, neither Party shall have any right to terminate the Deposit Agreement without the other Party’s prior written consent. Any such consent, which the other Party may grant or withhold in its discretion, shall be subject to the satisfaction of each of the following conditions to the satisfaction of the other Party:

(i)

the successor joint concentration account bank shall be reasonably acceptable to the other Party;

(ii)

TPG-Axon and CVT and the successor joint concentration account bank shall have entered into a deposit and account control agreement substantially in the form of the Deposit Agreement;

(iii)

all funds and items in the accounts subject to the Deposit Agreement to be terminated shall have been transferred to the new accounts held at the successor joint concentration account bank prior to or simultaneously with the termination of the Deposit Agreement; and

(iv)

TPG-Axon shall have received written evidence that Astellas has been instructed to remit all future payments in respect of the Regadenoson Royalty and Related Regadenoson Payments to the joint concentration account held at the successor joint concentration account bank.

(c) Upon the receipt by the Parties of a notice of resignation from JPMorgan pursuant to the terms of the Deposit Agreement, the Parties shall jointly select a successor joint concentration account bank subject to the satisfaction of each of the following conditions to the satisfaction of both Parties:

(i)

the successor joint concentration account bank shall be reasonably acceptable to each Party;

(ii)

TPG-Axon and CVT and the successor joint concentration account bank shall have entered into a deposit and account control agreement substantially in the form of the Deposit Agreement;

(iii)

all funds and items in the accounts subject to the Deposit Agreement shall have been transferred to the new accounts held at the successor joint concentration account bank prior to or simultaneously with the resignation of JPMorgan and the termination of the Deposit Agreement; and

(iv)

ARTICLE 4

CONFIDENTIAL INFORMATION

4.1 Definition of Confidential Information . For purposes of this Agreement, the term “ Confidential Information ” of a Party means any information furnished by or on behalf of such Party to the other Party or its Affiliates pursuant to this Agreement, which information (a) is of the nature that is typically known to be of a confidential nature, or (b) if disclosed in tangible form, is marked “Confidential” or with other similar designation to indicate its confidential or proprietary nature, or (c) if disclosed orally, is indicated orally to be confidential or proprietary at the time of such disclosure. CVT’s Confidential Information shall include all reports and CVT Officer’s Certificates and written notices CVT provides to TPG-Axon pursuant to this Agreement.

Notwithstanding the foregoing, a Party’s Confidential Information shall not include information that, in each case as demonstrated by written documentation or other competent evidence:

(i)

was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure;

(ii)

was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party;

(iii)

became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in Breach of this Agreement;

(iv)

was subsequently lawfully disclosed to the receiving Party by a Third Person having no obligation to the disclosing Party or its Affiliates; or

(v)

is independently developed by the receiving Party as evidenced by contemporaneous written documentation without the benefit of Confidential Information of the disclosing Party.

4.2 Obligations. Except as authorized in this Agreement or except upon obtaining the other Party’s prior written permission to the contrary, each Party agrees that during the Term and [****] years thereafter, it will:

(a) maintain i

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