Exhibit 10.2
INTELLECTUAL PROPERTY SECURITY
AGREEMENT
This Intellectual
Property Security Agreement (this “ IP
Agreement ”) is made as of the 15
th
day of April, 2008
by and between CV THERAPEUTICS, INC. , a Delaware
corporation (“ Grantor ”), and
TPG-AXON ROYALTY TRUST , a trust established under the laws
of the Republic of Ireland (“ Secured Party
”).
R ECITALS
Grantor has agreed to sell the right
to receive certain payments to Secured Party (the “
Royalty ”) based on sales of Regadenoson, the
chemical name and structure of which are set forth on Exhibit
A attached hereto (“ Regadenoson ”),
pursuant to a certain Asset Sale and Purchase Agreement dated as of
April 10, 2008 between Grantor and Secured Party, as amended
from time to time (as amended, the “ Purchase
Agreement ”). The closing of the transactions
contemplated by the Purchase Agreement is contingent upon the
execution and delivery of this IP Agreement. Secured Party is
willing to enter into the Purchase Agreement with Grantor, but only
upon the condition, among others, that Grantor shall grant to
Secured Party a security interest in certain patents, patent
applications and other assets, to secure the payment and
performance of Grantor’s obligations under the Purchase
Agreement and the other Transaction Documents. Defined terms used
but not defined herein shall have the same meanings as in the
Purchase Agreement.
A GREEMENT
NOW, THEREFORE
, for good and valuable
consideration, receipt of which is hereby acknowledged and
intending to be legally bound, Grantor hereby represents, warrants,
covenants and agrees as follows:
Effective as of the Closing Date,
Grantor does hereby grant to Secured Party a continuing security
interest of first priority in all of Grantor’s right, title
and interest in, to and under the following registered and
unregistered intellectual property collateral, whether now or
hereafter existing, and any and all proceeds thereof, as security
for the prompt and complete payment and performance of all of
Grantor’s obligations now or hereafter existing under the
Purchase Agreement, this IP Agreement, and the other Transaction
Documents (all of which shall collectively be called the “
Intellectual Property Collateral ”):
(a) All Licensed Patents in the
Territory set forth on Exhibit B attached hereto and
any Licensed Patents in the Territory issued after the date of this
Agreement (the “ Patents ”);
(b) All Licensed Know-How in the
Territory;
(c) All licenses or other rights to
use any of the Licensed Patents in the Territory, including,
without limitation, the licenses under the Astellas Agreement
(collectively, the “ Licenses
”);
(d) Any and all claims and causes of
action for damages by way of past, present and future infringements
of any of the rights included above, with the right, but not the
obligation, to sue for and collect such damages for said use or
infringement of the intellectual property rights identified
above;
1.
(e) All amendments, extensions,
renewals and extensions of any of the Patents or the
Licenses;
(f) The CVT Royalty Interest;
and
(g) All proceeds and products of the
foregoing, including without limitation all payments under
insurance or any indemnity or warranty payable in respect of any of
the foregoing.
This security interest is granted in
conjunction with the security interest granted to Secured Party
under the Purchase Agreement. Upon the occurrence and during the
continuance of a CVT Event of Default, Secured Party shall have the
right to exercise all the remedies of a secured party under the
Code. Grantor will pay any expenses (including reasonable
attorney’s fees) incurred by Secured Party in connection with
the exercise of any of Secured Party’s rights hereunder,
including without limitation any expense incurred in d
