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.
Exhibit 10.68
SECURITY AGREEMENT
This Security Agreement is dated and entered into as of May
5, 1999, by and between CV Therapeutics, Inc., a Delaware
corporation ("Borrower"), and quintiles transnational corp., a
North Carolina corporation ("Lender").
WITNESSETH:
Whereas, Borrower and Lender are parties to a Loan
Agreement (as amended, modified or supplemented from time to
time, the "Loan Agreement") dated as of the same date hereof,
pursuant to which, among other things, Borrower is delivering to
Lender the Pre-Approval Note and First-Year Sales Note (each as
defined in the Loan Agreement) (collectively, the "Notes"); and
Whereas, it is a condition precedent to the performance of
Lender under the Loan Agreement that Borrower enter into this
Security Agreement;
Now, Therefore, in consideration of the benefits to
Borrower, the receipt and legal sufficiency of which are hereby
acknowledged, Borrower hereby makes the following representations
and warranties to Lender and hereby covenants and agrees with
Lender as follows:
1. Definitions. The following terms, as used in this
Agreement, shall have the following meanings:
"Borrower NDA Letter" shall mean the letter, in the form of
Exhibit A attached hereto, delivered by Lender to Escrow Agent on
the date of this Agreement, which is signed by Lender as the
"former owner" of the NDA and addressed to the FDA, but which
otherwise is executed by Lender in blank.
"Collateral" shall mean the Pre-Approval Collateral and the
First-Year Sales Collateral.
"Copyrights" shall mean any U.S. copyright to which
Borrower now or hereafter has title, as well as any application
for a U.S. copyright hereafter made by Borrower.
"Event of Default" shall have the meaning given such term in
the Loan Agreement.
"Escrow Agent" shall mean Fort Xxxx Escrow Services, Inc.
"FDA" shall have the meaning given such term in the
Services Agreement.
"First-Year Sales Collateral" shall mean all of Borrower's
right, title and interest in, to and under all accounts, accounts
receivable and proceeds in respect of any sales of the Product in
the Territory, wherever located, however arising or created,
whether now existing or hereafter from time to time acquired or
created, together with all additions and accessions thereto or
replacements thereof, and any proceeds or products thereof.
"First-Year Sales Obligations" shall mean all indebtedness,
obligations and liabilities of Borrower to Lender under or in
connection with the First-Year Sales Note (as defined in the Loan
Agreement) and under or in connection with each of the Loan
Agreement and this Agreement with respect to the First-Year Sales
Note.
"Lender NDA Letter" shall mean the letter, in the form of
Exhibit B attached hereto, delivered by Borrower to Escrow Agent
on the date of this Agreement, which is signed by Borrower as the
"former owner" of the NDA and addressed to the FDA, but which
otherwise is executed by Borrower in blank.
"License Agreement" shall mean the License Agreement dated
as of March 27, 1996 between Syntex (U.S.A.), Inc., as licensor,
and Borrower, as licensee, as amended from time to time.
"Licensor" shall mean the licensor under the License
Agreement.
"NDA" shall mean the NDA for the Product which is the
subject of the NDA Filing as such terms are defined in the
Services Agreement.
"Obligations" shall mean the Pre-Approval Obligations and
the First-Year Sales Obligations.
"Pre-Approval Collateral" shall mean all of Borrower's
right, title and interest in, to and under the following,
wherever located, however arising or created, whether now
existing or hereafter from time to time acquired or created,
together with any and all additions and accessions thereto or
replacements thereof, and any proceeds or products thereof:
(a) All payments (including royalty payments) and proceeds
received or receivable by Borrower under the License Agreement in
respect of its license rights relating to the Product in the
Territory or pursuant to any license or any sublicense of such
license rights relating to the Product granted by Borrower under
the License Agreement;
(b) All payments (including royalty payments) and proceeds
received or receivable by Borrower pursuant to any assignment of
any rights in the Territory relating to the Product under the
License Agreement;
(c) All accounts, accounts receivable and proceeds in respect of
any sales of the Product in the Territory;
(d) All regulatory applications and filings of Borrower related
to the Product in the Territory whether issued or pending,
including without limitation the NDA and all supplements,
records, and reports that are required to be maintained under
applicable FDA regulations and all correspondence to and from the
FDA;
(e) All clinical data related to the NDA;
(f) The proceeds of all claims that have been or may be asserted
by Borrower arising out of the Product in the Territory or
arising out of Borrower's rights relating to the Product in the
Territory under the License Agreement or any license or
sublicense granted by Borrower under the License Agreement or any
assignment of any rights under the License Agreement, each in
respect of Borrower's rights relating to the Product in the
Territory;
(g) The proceeds from: the assignment or license of the
Trademark and all trademark rights and interests with respect
thereto, including all suits or oppositions or cancellation
proceedings in the name of Borrower for past, present, and future
infringements of the Trademark or other trademark rights related
to the Product in the Territory; and the entire goodwill
associated with the business now or hereafter conducted by
Borrower connected with or symbolized by the Trademark;
(h) All proceeds from the assignment or license of Copyrights
related to the Product; and
(i) All books, records, files, computer information or files and
other materials or documents relating to or arising out of the
foregoing subsections (c), (d) and (e) of this definition;
provided, however, that Borrower may retain a copy of each item
in this subsection (i).
"Pre-Approval Obligations" shall mean all indebtedness,
obligations and liabilities of Borrower to Lender arising under
or in connection with the Pre-Approval Note (as defined in the
Loan Agreement) and under or in connection with each of the Loan
Agreement and this Agreement with respect to the Pre-Approval
Note.
"Product" shall have the meaning given such term in the
Services Agreement.
"Regulatory Collateral" shall mean the items referred to in
clauses (d) and (e) of the definition of Pre-Approval Collateral
above and the items referred to in clause (i) of the definition
of Pre-Approval Collateral to the extent related to such clauses
(d) and (e).
"Services Agreement" shall mean the Sales and Marketing
Services Agreement dated as of the same date as this Agreement
between Innovex, Inc. and Borrower.
"Territory" shall have the meaning given such term in the
Services Agreement.
"Trademark" shall mean the United States trademark for the
Product.
2. Grant of Security Interests.
(a) As security for the prompt and complete payment and
performance when due of all of the Pre-Approval Obligations,
Borrower does hereby assign, transfer, pledge, and hypothecate
unto Lender, and does hereby grant to Lender a continuing
security interest of first priority in, all of the right, title,
and interest of Borrower in, to, and under the Pre-Approval
Collateral.
(b) As security for the prompt and complete payment and
performance when due of all of the First-Year Sales Obligations,
Borrower does hereby assign, transfer, pledge and hypothecate
unto Lender, and does hereby grant to Lender a continuing
security interest of first priority in, all of the right, title
and interest of Borrower in, to and under the First-Year Sales
Collateral.
3. Title to Collateral. Borrower represents and warrants that
it is the owner of the Collateral and has good, valid, marketable
and insurable title to the Collateral, free and clear of all
liens, security interests, and other encumbrances except for
those in favor of Lender.
4. Representations and Warranties of Borrower. Borrower
represents and warrants to Lender as of the date hereof as
follows:
(a) The execution and delivery by Borrower of this Agreement and
the financing statements and security interest filing statements
described herein (collectively, the "Security Documents"), and
the performance of the terms and obligations therein, are within
Borrower's corporate powers and have been duly authorized by all
necessary corporate action on the part of Borrower. The Security
Documents, when executed and delivered hereunder, will constitute
valid and legally binding obligations of Borrower enforceable
against Borrower in accordance with their terms, subject to (i)
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, and (ii) the
effect of general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(b) No agreements or contracts relating to the Collateral are in
effect that would likely have a material adverse impact on
Borrower's business relating to the Collateral.
(c) The License Agreement is a valid and legally binding
agreement, in full force and effect, enforceable in accordance
with its terms. Borrower is not and, to the knowledge of
Borrower, Licensor is not, in breach of any material term or
obligation of the License Agreement. No event has occurred which
permits, or after notice or lapse of time or both would permit,
the revocation or termination of any or all of the rights and
obligations of any party under the License Agreement. To the
knowledge of Borrower, neither Borrower nor Licensor is liable to
any person or entity for infringement of patents or other
proprietary information under applicable law with respect to the
rights relating to the Product granted under the License
Agreement.
(d) Except for the filing of financing statements with the State
of California and Santa Xxxxx County, California, and, only in
the case of any trademark matters, filings with the United States
Patent and Trademark Office and, only in the case of any
copyright matters, filings with the United State Copyright
Office, necessary to perfect the security interests created
hereunder, no authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required either for the grant by Borrower of
the security interest hereunder or for the execution, delivery,
or performance of this Agreement by Borrower or for the
perfection of such security interest or the exercise by Lender of
its rights hereunder to the Collateral. Upon the execution of
this Agreement and the completion of such filings, Lender will
have: a perfected, first priority security interest in the
Collateral, except for the Collateral referred to in subsections
(g) and (h) of the definition of Pre-Approval Collateral (the
"Intellectual Property Collateral"); and a first priority
security interest in the Intellectual Property Collateral.
(e) Neither the execution or delivery by Borrower of the
Security Documents, nor the performance of their respective terms
and obligations, will (i) violate Borrower's charter or bylaws,
(ii) constitute a breach or default under any agreement or
instrument to which Borrower is a party or by which Borrower is
bound, which breach or default would have a material adverse
effect on Borrower; (iii) violate any applicable law, rule or
regulation, which violation would have a material adverse effect
on Borrower, or (iv) violate any order, writ, injunction, decree
or judgment of any court or governmental authority applicable to
or binding upon Borrower, which violation would have a material
adverse effect on Borrower.
5. Transfer and Other Liens. The provisions of Sections 6.02,
6.03 and 8.02 of the Loan Agreement are hereby incorporated
herein by reference.
6. Other Financing Statements. Borrower represents, warrants
and covenants to and with Lender that: there exists no financing
statement (or similar statement or instrument of registration
under the law of any jurisdiction) covering or purporting to
cover any interest of any kind in the Collateral, and Borrower
will not execute or authorize to be filed in any public office
any financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) relating to the
Pre-Approval Collateral or the First Year Sales Collateral, as
applicable, except financing statements (or similar statements or
instruments of registration under the law of any jurisdiction)
filed or to be filed in respect of and covering the security
interests granted to Lender by Borrower and except as permitted
by Sections 6.03 and 8.02 of the Loan Agreement.
7. Performance Under License Agreement. Borrower shall perform
all of its obligations under the License Agreement as necessary
to maintain Borrower's rights in such agreement in full force and
effect including without limitation any and all payment
obligations.
8. Notices Under License Agreement. Borrower shall provide
written notice to Lender within two (2) business days of
Borrower's receipt of any notice from Licensor (or Borrower's
delivery of any notice to Licensor) of the occurrence of
Borrower's breach or default or an event of default under the
License Agreement.
9. Further Assurances. Borrower, upon request of Lender, will
deliver and execute or cause to be delivered and executed, in
form and content satisfactory to Lender, any financing,
continuation, termination, or security interest filing
statements, security agreement, assignment, or other document as
Lender may reasonably request in order to perfect, preserve,
maintain, or continue the perfection of Lender's security
interest in the Pre-Approval Collateral or the FirstYear Sales
Collateral, as applicable, or its priority, including without
limitation any document necessary to record Lender's security
interest in the items referred to in clause (g) of the definition
of Pre-Approval Collateral in the United States Patent and
Trademark Office. Borrower will pay the costs of filing any
financing, continuation, termination, or security interest filing
statement, assignment or other document as well as any
recordation or transfer tax required by law to be paid in
connection with the filing or recording thereof.
10. Power of Attorney. Borrower hereby appoints Lender as
Borrower's true and lawful attorney, with full power of
substitution, to do any or all of the following, in the name,
place, and stead of Borrower, as the case may be: (a) file this
Agreement (or an abstract hereof) or any other document
describing Lender's interest in the Collateral with any
appropriate governmental office (including, without limitation,
the State of California or any political subdivision thereof and
the United States Patent and Trademark Office or the United
States, Copyright Office); and (b) following an Event of Default,
(i) endorse Borrower's name on all applications, documents,
papers, and instruments necessary for Lender to use or maintain
the Pre-Approval Collateral or the First-Year Sales Collateral,
as applicable; (ii) ask, demand, collect, xxx for, recover,
impound, receive, and give acquittance and receipts for money due
or to become due under or in respect of any of the Pre-Approval
Collateral or the First-Year Sales Collateral, as applicable;
(iii) file any claims or take any action or institute any
proceedings that Lender may deem necessary or desirable for the
collection of any of the Pre-Approval Collateral or the First-
Year Sales Collateral, as applicable, or otherwise enforce
Lender's rights with respect to any of the Pre-Approval
Collateral or the First-Year Sales Collateral, as applicable;
(iv) assign, pledge, convey, or otherwise transfer title in or
dispose of the Pre-Approval Collateral or the First-Year Sales
Collateral, as applicable, to any person; and (v) take any action
and execute any instrument that Lender may deem necessary or
advisable to accomplish the purposes of this Agreement. The
provisions of this Section 10 shall be subject to the provisions
of Sections 15(b) and 16.
11. Right to Inspect. Borrower grants to Lender and its
employees and agents the right to visit Borrower's plants,
corporate offices, and facilities to inspect the Pre-Approval
Collateral or the First Year Sales Collateral, as applicable, at
reasonable times during regular business hours with prior written
notice to Borrower.
12. Name of Borrower, Place(s) of Business, and Location of
Collateral. Borrower represents and warrants that its correct
legal name is as specified on the signature lines of this
Agreement, and each legal or trade name of Borrower for the
previous seven (7) years (if different from Borrower's current
legal name) is as specified below the signature lines of this
Agreement. Without the prior written notice to Lender of at
least sixty (60) days, Borrower will not change its name,
dissolve, merge, or consolidate with any other person. Borrower
warrants that the address of its chief executive office is as
specified below the signature lines of this Agreement. The Pre-
Approval Collateral and the First Year Sales Collateral, as
applicable, and
all books and records pertaining thereto will be
located at Borrower's chief executive office specified below.
Borrower may establish a new location for the Pre-Approval
Collateral and the First Year Sales Collateral, as applicable, or
any part thereof, or the books and records concerning the Pre-
Approval Collateral and the First-Year Sales Collateral, as
applicable, or any part thereof, only if (a) it shall have given
to Lender prior written notice of its intention so to do, clearly
describing such new location and providing such other information
in connection therewith as Lender may request, and (b) with
respect to such new location, it shall have taken all action
satisfactory to Lender to maintain the security interest of
Lender in the Pre-Approval Collateral and the First Year Sales
Collateral, as applicable, intended to be granted hereby at all
times fully perfected and in full force and effect.
13. Taxes. Borrower shall pay as and when due and payable all
taxes, levies, license fees, assessments, and other impositions
levied on the Pre-Approval Collateral and the First Year Sales
Collateral, as applicable, or any part thereof for its use and
operations.
14. Litigation and Proceedings. Borrower shall commence and
diligently prosecute in its own name, as the real party in
interest, for its own benefit, and at its own expense, such
suits, administrative proceedings, or other actions for
infringement or other damages as are necessary to protect the Pre-
Approval Collateral and the First Year Sales Collateral, as
applicable. Borrower shall provide to Lender any information
with respect thereto reasonably requested by Lender.
15. Rights and Remedies upon Default.
(a) Borrower agrees that, if any Event of Default shall have
occurred and is continuing, then and in every such case, Lender,
in addition to any rights now or hereafter existing under
applicable law, and upon written notice to Borrower, shall have
all rights as a secured creditor under the Uniform Commercial
Code in all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately retake
possession of the Pre-Approval Collateral and the First Year
Sales Collateral, as applicable, or any part thereof;
(ii) instruct the obligor or obligors on any agreement,
instrument or other obligation constituting the Pre-Approval
Collateral and the First Year Sales Collateral, as applicable, to
make any payment required by the terms of such instrument or
agreement directly to Lender;
(iii)sell, assign or otherwise liquidate, or direct Borrower
to sell, assign or otherwise liquidate, any or all of the Pre-
Approval Collateral and the First Year Sales Collateral, as
applicable, or any part thereof, and take possession of the
proceeds of any such sale or liquidation;
(iv) take possession of the Pre-Approval Collateral and the First
Year Sales Collateral, as applicable, or any part thereof by
directing Borrower in writing to deliver the same to Lender at
any place or places designated by Lender; it being understood
that Borrower's
obligation so to deliver the Pre-Approval
Collateral and the First Year Sales Collateral, as applicable, is
of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, Lender
shall be entitled to a decree requiring specific performance by
Lender of said obligation;
(v) until the Pre-Approval Obligations are paid in full, or
released in accordance with the Loan Agreement, notify licensees
or assignees under the License Agreement in respect of rights
relating to the Product in the Territory, or any license,
sublicense or assignment pursuant thereto, to make payments
thereunder (including royalty payments) directly to Lender; and
(vi) until the Pre-Approval Obligations are paid in full, or
released in accordance with the Loan Agreement, to transfer the
Regulatory Collateral into Lender's name and otherwise act with
respect thereto as the outright owner thereof, and to complete
and submit the Lender NDA Letter to the FDA.
(b) Notwithstanding the foregoing, Lender shall refrain from
exercising its rights and remedies under Sections 15(a)(iii),
(iv) and (vi) above and Section 10 above with respect to (but
only with respect to) the Regulatory Collateral until the earlier
of the date (the "Reconveyance Date") which is (i) [*] days after
the date on which the Event of Default under the Loan Agreement
shall have occurred, (ii) the date on which an Event of Default
under Section 7.01(f) of the Loan Agreement shall have occurred,
or (iii) the date on which an Event of Default under Section
7.01(g) of the Loan Agreement shall have occurred. If Borrower
irrevocably pays and satisfies the Pre-Approval Obligations prior
to the Reconveyance Date, then (x) Lender will execute and
deliver to Borrower a proper instrument in order to duly transfer
to Borrower such of the Regulatory Collateral as may be in the
possession of Lender and (y) Borrower shall be entitled to
complete and submit the Borrower NDA Letter to the FDA. Prior to
the Reconveyance Date, Lender shall not, except as required by
applicable laws or regulations, communicate with the FDA
regarding the Regulatory Collateral, except through Borrower. If
prior to the Reconveyance Date Lender is required by applicable
law or regulations to communicate with the FDA regarding the
Regulatory Collateral, Lender shall promptly notify Borrower of
the nature and content thereof and Lender shall reasonably
cooperate with Borrower, at Borrower's expense, in all proper
respects in all regulatory matters relating to the Regulatory
Collateral.
(c) Borrower shall pay on demand all costs and expenses,
including, without limitation, reasonable attorneys' fees and
expenses, incurred by or on behalf of Lender (a) in enforcing the
Obligations, and (b) in connection with the taking, holding,
preparing for sale or other disposition, selling, managing,
collecting, or otherwise disposing of the Collateral. All of
such costs and expenses (collectively, the "Liquidation Costs")
together with interest thereon at the interest rate specified in
the Notes, from the date of payment until repaid in full, shall
be paid by Borrower to Lender on demand and shall constitute and
become a part of the Obligations secured hereby. Any proceeds of
sale or other disposition of the Collateral will be applied by
Lender to the payment of Liquidation Costs, and any balance of
such proceeds will be applied by Lender to the payment of the
remaining Obligations in such order and manner of application as
Lender may determine. Borrower hereby grants to Lender, as
security for the full and punctual
payment and performance of the
Obligations, a continuing security interest in and lien on all
now or hereafter existing balances, credits, accounts, deposits,
and all other sums credited by, maintained with, or due from
Lender or any affiliate of Lender to Borrower; and regardless of
the adequacy of any Collateral or other means of obtaining
repayment of the Obligations, Lender may at any time and without
notice to Borrower set off the whole or any portion or portions
of any or all such balances, credits, accounts, deposits, and
other sums against any and all of the Obligations.
16. Additional Deliveries by the Parties and Related Provisions.
(a) On the date of this Agreement, Borrower shall execute and
deliver to Escrow Agent the Lender NDA Letter, which shall be
used by Lender only as described in Section 15(a).
(b) On the date of this Agreement, Lender shall execute and
deliver to Escrow Agent the Borrower NDA Letter, which shall be
used by Borrower only as described in Section 15(b).
(c) On the date of this Agreement, Lender shall execute and
deliver to Borrower termination statements on Form UCC-3 executed
by Lender for the purpose of terminating the financing statements
delivered by Borrower to Lender pursuant to the Loan Agreement
with respect to (but only with respect to) the Pre-Approval
Collateral. Such termination statements shall be used by
Borrower: only if no initial Pre-Approval Advance under the Loan
Agreement has been made or all Pre-Approval Obligations have been
irrevocably paid and satisfied in full; and, if no initial Pre-
Approval Advance has been made, only upon the occurrence of the
date which is ten (10) days after Borrower delivers to Lender a
written notice by Borrower addressed to Lender (a "Pre-Approval
Termination Notice") which expressly states that, as of the date
of such notice: (i) Borrower is obligated and intends to perform
the provisions of Section 5.2 of the Services Agreement, (ii) the
Pre-Approval Commitment of Lender under the Loan Agreement is
terminated, and (iii) Borrower has the financial resources to
fulfill its obligations under Section 5.2 of the Services
Agreement because Borrower has obtained sufficient financing from
a party other than Lender in lieu of utilizing the Pre-Approval
Commitment. In the event Borrower delivers to Lender a Pre-
Approved Termination Notice, Lender shall return to Borrower the
Lender NDA Letter.
17. Deficiency. If the sale or other disposition of the
Collateral fails to satisfy in full the Obligations, Borrower
shall remain liable to Lender for any deficiency; provided,
however, that upon the sale or other disposition of the
Collateral, the Obligations shall be decreased by an amount equal
to the greater of (a) the fair market value of the Collateral,
whether or not Lender actually receives fair market value upon
the sale or other disposition of the Collateral; or (b) the
amount that Lender actually receives upon the sale or other
disposition of the Collateral.
18. Remedies Cumulative. Each right, power, and remedy of
Lender as provided for in this Agreement or now or hereafter
existing at law or in equity or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other
right, power, or remedy provided for in this Agreement or now or
hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by
Lender of any one or more of such
rights, powers, or remedies shall not preclude the simultaneous or later
exercise by Lender of any or all such other rights, powers, or remedies.
19. Pre-Approval Collateral. Notwithstanding anything to the
contrary contained herein, the provisions of this Security
Agreement shall only apply with respect to the Pre-Approval
Collateral until: the Pre-Approval Commitment shall terminate
and the Lender shall have no further obligation to make Pre-
Approval Advances under the Loan Agreement; and any Pre-Approval
Advances have been irrevocably paid and satisfied in full.
20. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by Borrower
herefrom, shall in any event be effective unless the same shall
be in writing and signed by Borrower and Lender, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
21. Notices. All notices and other communications provided for
hereunder shall be in writing, shall specifically refer to this
Agreement and shall be deemed to have been sufficiently given to
Borrower and Lender for all purposes if mailed by first class
certified or registered mail, postage prepaid, express delivery
service, personally delivered, or telecopied, to the following
names and addresses:
If to Lender:
Quintiles Transnational Corp.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to Borrower:
CV Therapeutics, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, General Counsel
Facsimile: (000) 000-0000
With a Copy to:
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
22. No Waiver; Remedies. No failure on the part of Lender to
exercise, and no delay in exercising, any right hereunder or
under the Loan Agreement or the Notes shall operate as a waiver
thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
23. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns, provided that neither Borrower
nor Lender may assign or transfer any or all of its rights or
obligations under the Security Documents without the prior
written consent of the other party; provided however, that Lender
may at any time assign or transfer any or all of its rights or
obligations under the Security Documents to an affiliate.
24. Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the laws
of the State of Delaware, without reference to the conflicts or
choice of law principals thereof. Borrower and Lender hereby
irrevocably consents to the exclusive personal jurisdiction of
any state or federal courts located in Delaware, in any action,
claim or other proceeding arising out of any dispute in
connection with the Security Documents, any rights or obligations
hereunder or the performance of such rights and obligations.
Lender and Borrower agree to waive their respective rights to a
jury trial with respect to any action, claim, or other proceeding
arising out of any dispute in connection with the Security
Documents, any rights or obligations hereunder or thereunder, or
the performance of such rights and obligations.
25. Severability. To the extent any provision of this Agreement
is prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
26. Entire Agreement. This Agreement and the other Security
Documents embody the entire agreement and understanding between
the parties hereto and supersede all prior oral or written
agreements and understandings relating to the subject matter
hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in the Security
Documents shall affect, or be used to interpret, change or
restrict, the express terms and provisions of the Security
Documents.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and
all of which, when taken together, shall constitute one and the
same instrument.
[THE REMAINDER OF THE PAGE IS INTENTIONAL LEFT BLANK;
SIGNATURES ON FOLLOWING PAGE]
[Signature Page to Security Agreement]
In Witness Whereof, the parties hereto have caused this
Agreement to be duly executed by their respective duly authorized
officers, as of the date first above written.
BORROWER:
CV Therapeutics, Inc.
By: /s/ X. Xxxxx
Name: Xxxxx X. Xxxxx
Title:Chairman & CEO
Legal or tradename of Borrower for the previous seven (7) years
CV Therapeutics, Inc. (June 23, 1992 to present)
Cholesterex, Inc. (prior to June 23, 1992)
Address of chief executive office
0000 Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
LENDER:
Quintiles Transnational Corp.
By:
Name:
Title:
[Signature Page to Security Agreement]
In Witness Whereof, the parties hereto have caused this
Agreement to be duly executed by their respective duly authorized
officers, as of the date first above written.
BORROWER:
CV Therapeutics, Inc.
By:
Name: Xxxxx X. Xxxxx
Title:Chairman & CEO
Legal or tradename of Borrower for the previous seven (7) years
CV Therapeutics, Inc. (June 23, 1992 to present)
Cholesterex, Inc. (prior to June 23, 1992)
Address of chief executive office
0000 Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
LENDER:
Quintiles Transnational Corp.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Corporate Development
CV Therapeutics
Date:
Food and Drug Administration
Re:
Product: Ranolazine
NDA No:
Dear Sirs:
In accordance with 21 CFR 314.72, we are informing you that
effective as of the date specified below, ownership of the above-
referenced NDA was transferred to the following new owner:
Quintiles Transnational Corp.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Legal Department
A letter of acceptance of ownership is being provided to your
office under separate cover by Quintiles Transnational Corp. All
future correspondence concerning this NDA should be addressed to
Quintiles Transnational Corp. Thank you.
Sincerely,
/s/ Xxxxx Xxxxx
Name:
Title:
QUINTILES Quintiles Transnational Corp.
Xxxx Xxxxxx Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000-0000
000 0000000 / Fax 000 0000000
Date:
Food and Drug Administration
Re:
Product: Ranolazine
NDA No:
Dear Sirs:
In accordance with 21 CFR 314.72, we are informing you that
effective as of the date specified below, ownership of the above-
referenced NDA was transferred to the following new owner:
CV Therapeutics, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
A letter of acceptance of ownership is being provided to your
office under separate cover by CV Therapeutics, Inc. All future
correspondence concerning this NDA should be addressed to CV
Therapeutics, Inc. Thank you.
Sincerely,
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President,
Corporate Development
[ * ] = 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.
