Exhibit
10.3


 


Trademark License Agreement


 


 


between


 


 


ImmuPharma AG


as “ImmuPharma Switzerland”


 


 


and


 


 


Anesta AG


as “Anesta”


 


 


relating to the trademarks


 


 


“Lupuzor”, “Lupusol” and “Lupustat”


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 

















 


THIS
TRADEMARK LICENSE AGREEMENT (this “Agreement”) is made
as of the Effective Date as defined hereinafter and is made


 


BETWEEN:


 


(1)                               ImmuPharma AG, (“ImmuPharma
Switzerland”), incorporated in Switzerland
and having its registered seat at Kägenstrasse 12, CH-4153 Reinach, Switzerland;
and


 


(2)                                  Anesta, AG, (“Anesta”),
incorporated in Switzerland and having its principal place of business at
Barrenstrase 23, 6300 Zug, Switzerland, and an Affiliate of Cephalon, Inc.,
incorporated in Delaware, U.S.A. (“Cephalon”)


 


(each of ImmuPharma Switzerland and Anesta hereinafter
referred to as “Party” and together referred to as “Parties”)


 


WHEREAS:


 


(A)                              ImmuPharma
Switzerland owns or Controls certain proprietary rights, titles and interest in
and to the use of any trade names or trademarks created by it in respect of its
Lupuzor product, including the registered trademark “Lupuzor” and any other
trademarks ImmuPharma Switzerland may apply for or register in the future in
respect of ImmuPharma France’s Lupuzor product (the “Licensed Trademarks”
as defined);


 


(B)                                Anesta
wishes to develop and commercialise ImmuPharma France’s Lupuzor product in the
Territory (as hereinafter defined) for Lupus and any other indications for
which the Lupuzor product may be developed, marketed or used on the terms and
conditions hereof, however subject to ImmuPharma France’s obtaining certain
positive results in the clinical trial currently being conducted on behalf of
ImmuPharma France for the Lupuzor product;


 


(C)                                ImmuPharma
Switzerland has agreed to enter simultaneously with the Development and Commercialization
Agreement into this Agreement granting Anesta the right to use ImmuPharma
Switzerland’s Licensed Trademarks for the Lupuzor product in the Territory
subject to the terms and conditions hereinafter specified;


 


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


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


1

















 


	
  WHEREAS:

  	
   

  	
  1

  
	
   

  	
   

  
	
  1.

  	
  Definitions

  	
  3

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Payment of the Decision Fee and Effective Date of Agreement

  	
  8

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Grant

  	
  9

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Trademark Milestone Payments

  	
  10

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Running Royalties

  	
  10

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Timing and Statement of Royalty and Trademark Milestone Payments

  	
  11

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Accounting and Other Financial Provisions Relating to Royalties and
  Other Payments

  	
  11

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Remittance, Currency and Taxes

  	
  12

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Manufacturing and Marketing of Finished Goods

  	
  14

  
	
   

  	
   

  	
   

  
	
  10.

  	
  General Diligence of Anesta

  	
  15

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Trademark Protection

  	
  15

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Infringement of the Licensed Trademarks

  	
  15

  
	
   

  	
   

  	
   

  
	
  13.

  	
  Infringement of Independent Third Party Rights

  	
  16

  
	
   

  	
   

  	
   

  
	
  14.

  	
  Confidentiality

  	
  17

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Public Announcements

  	
  18

  
	
   

  	
   

  	
   

  
	
  16.

  	
  ImmuPharma Switzerland Representations and Warranties

  	
  19

  
	
   

  	
   

  	
   

  
	
  17.

  	
  Anesta Representations and Warranties

  	
  21

  
	
   

  	
   

  	
   

  
	
  18.

  	
  Indemnification between the Parties

  	
  22

  
	
   

  	
   

  	
   

  
	
  19.

  	
  Insurance

  	
  23

  
	
   

  	
   

  	
   

  
	
  20.

  	
  Disclaimer

  	
  23

  
	
   

  	
   

  	
   

  
	
  21.

  	
  Ordinary Termination

  	
  24

  
	
   

  	
   

  	
   

  
	
  22.

  	
  Specific Performance and Extraordinary Termination

  	
  25

  
	
   

  	
   

  	
   

  
	
  23.

  	
  Effect of Extraordinary Termination

  	
  27

  
	
   

  	
   

  	
   

  
	
  24.

  	
  Further Consequences of Extraordinary Termination.

  	
  27

  
	
   

  	
   

  	
   

  
	
  25.

  	
  Assignments

  	
  29

  
	
   

  	
   

  	
   

  
	
  26.

  	
  Affiliates, Sub-Licensees and Sub-Contracting

  	
  29

  
	
   

  	
   

  	
   

  
	
  27.

  	
  Oversight Committee

  	
  29

  
	
   

  	
   

  	
   

  
	
  28.

  	
  General Dispute Resolution

  	
  29

  
	
   

  	
   

  	
   

  
	
  29.

  	
  Waiver

  	
  30

  
	
   

  	
   

  	
   

  
	
  30.

  	
  General Assurances

  	
  30

  
	
   

  	
   

  	
   

  
	
  31.

  	
  Severability

  	
  31

  
	
   

  	
   

  	
   

  
	
  32.

  	
  Entire Agreement

  	
  31

  
	
   

  	
   

  	
   

  
	
  33.

  	
  Titles and Headings

  	
  31

  
	
   

  	
   

  	
   

  
	
  34.

  	
  Costs of Preparation

  	
  31

  
	
   

  	
   

  	
   

  
	
  35.

  	
  Notices

  	
  31

  
	
   

  	
   

  	
   

  
	
  36.

  	
  Force Majeure

  	
  33

  
	
   

  	
   

  	
   

  
	
  37.

  	
  No Agency, Partnership or Joint Venture

  	
  33

  
	
   

  	
   

  	
   

  
	
  38.

  	
  Benefit to Third Parties

  	
  33

  
	
   

  	
   

  	
   

  
	
  39.

  	
  Governing Law

  	
  34

  
	
   

  	
   

  
	
  SCHEDULE 1

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 2

  	
   

  	
   

  
				



 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


2

















 


1.             Definitions


 


1.1                                Definitions.
For the purposes of this Agreement the following terms shall have the exclusive
meaning as defined below when written in capital letters, whereby all terms in
capital letters not defined herein shall have the same meaning as in the
Development and Commercialization Agreement:


 


(A)                              “Accounting
Period” means each three-month period ending on 31st March, 30th June, 30th
September or 31st December.


 


(B)                                “Acquiror”
means as set forth in Clause 22.6 hereof.


 


(C)                                “Affiliate”
means, with respect to a Party, any other company, corporation or other Entity
which (directly or indirectly) owns, is owned by or is under common ownership
with such Party or any other Entity actually controlled by, controlling or
under common control with such Party. 
For purposes of this definition only, “ownership” or “control” shall
mean where one Entity owns or controls fifty percent (50%) or more of the
equity conferring voting rights and/or otherwise has the ability to direct the
business affairs of another.


 


(D)                               “Business
Day” means any day when the banks in Zurich, London and New York are open
for business.


 


(E)                                 “Anesta
Sub-Licensee” means an Entity, other than an Affiliate of Anesta, that will
have been granted a license by Anesta or Anesta’s Affiliates to any of the
Licensed Patents, Licensed Technical Information or Licensed Trademarks on the
terms and conditions set forth in Clause 3.2 hereof or that has any enforceable
and unconditional agreement with or commitment from Anesta or its Affiliates
for the grant of such a sub-license.


 


(F)                                 “Cephalon”
means
Cephalon, Inc., incorporated in Delaware, U.S.A. and having its principal
place of business at 41 Moores Road, Frazer, PA 19355, U.S.A., who is the
indirect owner of 100% of the equity of Anesta.


 


(G)                                “Clinical Studies”
means:


 


(1)                      any
study in man involving the administration of the Licensed Product or Licensed
Molecules to human beings, including studies in all phases of clinical
development (Phases I, II, III and IV); and


 


(2)                      observational
studies concerning the effects of the Licensed Product or Licensed Molecules in
human beings, including post authorization safety studies, quality of life
studies and pharmacoeconomic studies.


 


(H)                               “CNRS” means the Centre National de la Recherches
Scientifiques, France.


 


(I)                                    “CNRS Agreements” means
collectively the CNRS/ImmuPharma License Agreement (as defined) as well as any
other collaboration agreements, license agreements, exploitation agreements
between CNRS and ImmuPharma (as amended from time to time) which pertain to the
Licensed Molecules, the Licensed Product or the Licensed Technical 


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


3

















 


Information,
however only to the extent they so pertain to the Licensed Molecules, the
Licensed Product or the Licensed Technical Information.


 


(J)                                   “Combination
Product” means any composition which comprises the Licensed Molecules and
at least another active ingredient.


 


(K)                               “Commercial
Year” means, except with respect to the first Commercial Year, each
successive 12 calendar month period starting from the 01 January of one
year and ending on the 31 December of the same year. The first Commercial
Year shall begin on the date of the First Commercial Sale to occur in the
Territory and end on the 31 December of that year.


 


(L)                                 “Commercially
Reasonable Efforts” [**]


 


(M)                            “Confidentiality
Agreement” means the Confidentiality Agreement made as of 15 June 2007
between ImmuPharma and Cephalon.


 


(N)                               “Control”,
“Controls” or “Controlled” means the possession of the ability to
grant the licenses or sublicenses or disclose information as provided for
herein, without breaching the terms of any prior written agreement or other
arrangement with any Third Party.


 


(O)                               “Decision
Payment” means an amount equal to thirty
million US Dollars (US$30,000,000).


 


(P)                                 “Development
and Commercialization Agreement” means the certain development and
commercialization agreement between Anesta and ImmuPharma France to be signed
of even date hereof.


 


(Q)                               “Dispute”
means any dispute that arises out of or in connection with this Agreement,
including any question regarding the existence, scope, validity or termination
of this Agreement.


 


(R)                                “Effective
Date” means the date on which this Agreement became effective under Clause
2.1 hereof.


 


(S)                                 “Entity”
means, and includes, any person, firm or company or group of persons or
unincorporated organization.


 


(T)                                “Finished
Goods” means any product containing Licensed Product, which is fully
formulated in final form packed for ultimate consumer use and ready for use by
or administration to patients in the Territory including any packaging,
labelling and any necessary inserts.


 


(U)                               “First
Commercial Sale” means the first commercial sale of Finished Goods in the
Territory by Anesta or an Affiliate or a co-promoter (as defined in Clause 3.3)
in accordance with an NDA which has, prior to such sale, been approved in the
Territory for such Finished Goods.


 


(V)                                “GAAP”
means generally-accepted accounting principles, consistently applied.


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


4

















 


(W)                           “Generic
Equivalent” [**]


 


(X)                               “Generic
Competition” [**]


 


(Y)                                “ImmuPharma”
means ImmuPharma France and ImmuPharma Switzerland.


 


(Z)                                “ImmuPharma
France” means ImmuPharma (France) SA, a French corporation, having its
principal place of business at 5, rue du Rhône, F-68100 Mulhouse, France.


 


(AA)                   “ImmuPharma Patents” means
(i) any and all Patents owned or co-owned by ImmuPharma on or after the
Effective Date, including any and all Patents added to the Licensed Patents
either (x) pursuant to Clause 20.6 of the Development and
Commercialization Agreement, or (y) under the CNRS Agreements (as
defined); (ii) any Patents owned or co-owned by ImmuPharma which claim
priority to such Patents; and (iii) any Patents which would be infringed
by the manufacture, use or sale of the Licensed Molecules or the Licensed
Products which are owned or Controlled by ImmuPharma, all of (i), (ii) and
(iii) however only to the extent they relate to the Licensed Molecules,
the Licensed Product or the Licensed Technical Information.


 


(BB)                        “ImmuPharma Sub-Licensee”
means an Entity, other than an Affiliate of ImmuPharma, that will be granted a
license by ImmuPharma or ImmuPharma’s Affiliates to any of the Licensed
Patents, Licensed Technical Information or Licensed Trademarks outside the
Territory upon termination in single countries on the terms and conditions
hereof.


 


(CC)                        “ImmuPharma Switzerland” means ImmuPharma AG, a Swiss
corporation, having its present principal place of business at Kägenstrasse 12,
CH-4153 Reinach, Switzerland, which is an Affiliate of ImmuPharma.


 


(DD)                      “IND” means any
approval, consent, clearance or exemption necessary to carry out, sponsor,
distribute or supply investigational drugs or medicinal products for a Clinical
Trial which is obtained through notification to or grant or confirmation by a
regulatory authority in any country or jurisdiction of the Territory.


 


(EE)                          “Independent
Third Party” means any person or Entity other than ImmuPharma or Anesta,
their Sub-Licensees, or their sub-contractors under Clauses 9.1 or 26.1 or any
Affiliates of the foregoing.


 


(FF)                          “Late
Payment Interest” means as set forth in Clause 7.4 hereof.


 


(GG)                        “Licensed
Molecules” means
any molecule that is a chemical derivative of a peptide corresponding to the
sequence 131-151 of the 70k-snRNP protein (i.e., RIHMVYSKRSGKPRGYAFIEY, which
is SEQ ID NO: 1 of U.S. patent application serial number 10/236,468), including
derivatives in which a Lysine (in position 138 or 142) is acetylated or a
Serine (in position 137 or 140) is phosphorylated, any combination thereof and
in particular Lupuzor, and the esters, amides, salts, hydrates and solvates
thereof.


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


5

















 


(HH)                     “Licensed Product”
means any formulations or dosages that contain the Licensed Molecules,
including but not limited to any Combination Product, for any and all uses.


 


(II)                                “Licensed
Trademarks” means the marks LUPUZOR, LUPUSOL and LUPUSTAT and any other
word marks, designs or logos that ImmuPharma may apply for, register, create,
own or use in the future in respect of the Licensed Products or Licensed Molecules,
including but not limited to, those marks listed on Schedule 1 of this
Agreement and any amendments thereto.


 


(JJ)                              “Lupuzor”
means IPP-201101, otherwise known as P140, which is the peptide corresponding
to the sequence 131-151 of the 70k-snRNP protein with a phosphorylated “Ser” in
position 140, the chemical structure of which is given in Schedule 3,
and the esters, amides, salts, hydrates and solvates thereof.


 


(KK)                      “Mediation
Notice” shall have the meaning given to it in Clause 28.4 hereof.


 


(LL)                          “NDA” means any
application or notification made to and accepted by a Regulatory Authority for
approval for Finished Goods to be placed on the market or sold for public
consumption as drugs or medicinal products, including without limitation a “shonin”
granted by the MHLW.


 


(MM)                “Net
Sales” for any given period shall mean the gross aggregate amount invoiced
on account of sales of Finished Goods by Anesta or any of its Affiliates,
Anesta Sub-Licensees or their co-promoters (as defined in Clause3.3) to an Independent
Third Party in the Territory (but not including sales between Anesta, its
Affiliates, Anesta Sub-licensees or their co-promoters where the Licensed
Product or Licensed Molecules is intended for resale) less the following
reductions directly relating to such sales of Finished Goods:


 


(a) trade and quantity discounts or rebates given in the ordinary
course of business which are not already reflected in the amount invoiced;


 


(b) any adjustments or allowances on account of price adjustments,
billing errors, rejected goods, damaged goods and returns;


 


(c) credits, volume rebates, charge-back and prime vendor rebates,
fees, reimbursements or similar payments granted or given to wholesalers and
other distributors, buying groups, health care insurance carriers, pharmacy
benefit management companies, health maintenance organizations or other
institutions or health care organizations, which are not already reflected in
the amount invoiced;


 


(d) any tax associated with the sales of goods such as VAT, sales
tax, tariff, customs duty, excise or other duty or other governmental charge
(other than a Tax on income) levied on the sale, transportation or delivery of
the Licensed Molecules or Licensed Product and borne by the seller thereof,
itemized on the applicable invoice and remitted to the applicable taxing
authority;


 


(e) payments or rebates paid in connection with sales of the
Licensed Product or Licensed Molecules to any governmental or regulatory
authority in respect of any state or federal Medicare, Medicaid or similar
programs, which are not already reflected in the amount invoiced;


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


6

















 


(f) any invoiced charge for freight, insurance or other
transportation costs charged to the customer, in each case only when separately
shown on the invoice; and


 


(g) amounts allocated to bad debts.


 


PROVIDED THAT in
any event deductions may only be made under (a) to (g) to the extent
they are truly, fairly and equitably allocated to the Net Sales of Finished
Goods of Licensed Product or Licensed Molecules so that such do not bear a
disproportionate portion of such deductions. For purposes of this definition,
the Licensed Product or Licensed Molecules shall be considered “sold” and “reductions”
allowed when recorded as invoiced in Anesta’s, its Affiliates’, Anesta
Sub-licensees’ or co-promoters’ financial statements prepared in accordance
with US generally accepted accounting principles. “Ordinary Termination”
means as set forth in Clause 21.1 hereof.


 


(NN)                      “Non-Exclusive”
or “Non-Exclusivity” means that ImmuPharma and its Affiliates shall have
the right pursuant to Clause 33.5 of the Development and Commercialization
Agreement to evaluate, develop, keep, use, make, have made, market, sell, have
sold, import, have imported, export, have exported or otherwise exploit or
grant any licenses or sublicenses to any Third Parties to the Licensed Patents
or the Licensed Technical Information for the Licensed Product or Licensed
Molecules in one or more specific countries of the Territory to the extent such
right of ImmuPharma is required as a result of any applicable antitrust act or
competition law regulation.


 


(OO)                      “Option”
means the option granted by ImmuPharma to Cephalon and Anesta under the Option
Agreement.


 


(PP)                          “Option
Agreement” means a certain option agreement between Immupharma on the one
hand as well as Cephalon and Anesta on the other hand, dated November 21,
2008.


 


(QQ)                      “Ordinary
Termination” means as set forth in Clause 21.1 hereof.


 


(RR)                        “Oversight
Committee” means the committee established in accordance with Clause 27.1.


 


(SS)                          “Parent Guarantee Agreement”
[**]


 


(TT)                        “Positive
Decision Notice” shall have the meaning as set forth in Clause 2.1 hereof.


 


(UU)                      “Regulatory
Authorities” means any and all governmental or supra-national agencies,
ministries, authorities or other bodies having responsibility for the
regulation or control of drugs or medicinal products.


 


(VV)                        “Relevant
Conditions” shall have the meaning set forth in Clause 13.2(C) hereof.


 


(WW)              “Running
Royalties” means as set forth in Clause 5 hereof.


 


(XX)                      “Significant
Generic Competition” means a level of Generic Competition [**]


 


(YY)                        “Sub-Licensee”
and “Sub-Licensees” means as the context requires either or both of an
Anesta Sub-Licensee or an ImmuPharma Sub-Licensee or Anesta Sub-Licensees and
ImmuPharma Sub-Licensees if referred to collectively.


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


 


7

















 


(ZZ)                        “Tax”
or “Taxes” means all of the following: (i) any net income,
alternative or add-on minimum tax, gross income, gross receipts, sales, use ad
valorem, transfer, franchise, profits, license, excise, severance, stamp,
occupation, employment, payroll, production, withholding, value added, premium,
property, environmental, or windfall profits tax or other tax, custom, duty or
other tax, governmental fee or other like assessment or charge of any kind
whatsoever together with interest or penalty additional to tax that may be
imposed by any Governmental or Regulatory Authority and (ii) any liability
for the payment of amounts described in (i) above as a result of being a
member of an affiliated, consolidated, combined or unitary group for any
taxable period.


 


(AAA)          “Territory”
means all the countries of the world, other than those countries which cease to
be a part of the Territory or become Non-Exclusive.


 


(BBB)                “Third
Party” means any party, person or Entity, other than a Party hereto or an
Affiliate, Sub-Licensee, permitted sub-contractor or co-promoter of a Party
hereto.


 


(CCC)                “Third
Party Claim” shall have the meaning as set forth in Clause 13.1 hereof.


 


(DDD)            “Third
Party Patents” means (i) the CNRS Lupuzor Patents and any and all
other Patents Controlled by ImmuPharma on or after the Effective Date that
relate to the Licensed Molecules or the Licensed Product and only to the extent
that they relate to the Licensed Molecules and the Licensed Product, including
any and all Patents added to the Licensed Patents pursuant to Clause 20.6 of
the Development and Commercialization Agreement, but not including the
ImmuPharma Patents, (ii) any patents Controlled by ImmuPharma which claim
priority to such patents and (iii) any patents which would be infringed by
the manufacture, use or sale of the Licensed Molecules or the Licensed Product
which are Controlled by ImmuPharma.


 


(EEE)                   “Trademark
License Agreement” means this Agreement.


 


(FFF)                   “Trademark
Milestones” mean as set forth in Clause 4.1 hereof.


 


1.2                                Sections
and Clauses. The “Clauses” of this Agreement are
the numbered provisions of this Agreement.


 


1.3                                Singular
and Plural. The singular includes the plural and vice
versa, words denoting any gender include all genders.


 


1.4                                Parties’
References. Where the context so admits or requires
references to “ImmuPharma” and “Anesta” and their “Affiliates”, Sub-Licensees”,
sub-contractors or co-promoters, such terms shall include their respective
employees, officers, directors and agents.


 


2.             Payment of the Decision Fee and Effective Date of
Agreement


 


2.1                                Conditions
Precedent. This Agreement shall only become effective upon
the occurrence of all of the following: (i) Cephalon acting also on behalf
and for the account of Anesta has sent a written notice to ImmuPharma
Switzerland, indicating a final decision to exercise the Option (“Positive
Decision Notice”), and (ii) payment by Cephalon, and receipt by
ImmuPharma Switzerland, of the Decision Payment.  For the avoidance of doubt, this Agreement
shall be executed by all Parties required to execute this Agreement at the time
of execution of the Option Agreement, in advance of the satisfaction of each of
the foregoing subsections (i) and (ii), but this Agreement 


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


8

















 


shall only be in
full force and effect after the occurrence of any and all of (i) and (ii) above.
All signed copies hereof shall be deposited
with the Escrow Agent who shall hold all the signed agreements in escrow for
the Parties hereto. Upon the occurrence of all of (i) and (ii) above,
the Escrow Agent shall release one fully executed copy of this Agreement,
signed by ImmuPharma Switzerland, Cephalon and the Escrow Agent, to each of the
signatories hereof. Should either (i) or (ii) not occur within the
Option Period, the Escrow Agent shall destroy all Signed Agreements.


 


3.             Grant


 


3.1                                Licensed
Trademarks. ImmuPharma Switzerland hereby grants on the
terms and conditions hereof to Anesta an exclusive (as set forth hereinafter
and even as to ImmuPharma Switzerland and its Affiliates) license under the
Licensed Trademarks to use the Licensed Trademarks in conjunction with the
development, use, manufacture, distribution, marketing, promotion and sale of
the Licensed Products or the Licensed Molecules in the Territory. Anesta shall
be the sole and exclusive licensee in respect of the Licensed Trademarks for
Finished Goods of the Licensed Products or Licensed Molecules within the
Territory. “Exclusive” shall mean that for as long as this Agreement is in full
force and effect in any such country of the Territory, neither ImmuPharma
Switzerland nor its Affiliates shall make, use or sell, or grant any licenses
to any Third Parties for the manufacture, use or sale, of any product in
conjunction with the Licensed Trademarks, other than for the manufacture and use of
the Licensed Product or Licensed Molecules in a Territory pursuant to
termination or Non-Exclusivity under Clause 33.5 of the Development and
Commercialization Agreement.


 


3.2                                Sub-Licenses.
Anesta may (i) sub-license the rights granted to it hereunder to its
Affiliates and Cephalon’s Affiliates and (ii) sub-license any and all
rights granted hereunder to Third Parties to produce or use the Licensed
Product or Licensed Molecules in the Territory. Sub-Licenses to Third Parties
by Anesta shall be subject to the due fulfilment of all the following
prerequisites:


 


(A)                   [**]


 


(B)                     [**]


 


(C)                     [**]


 


(D)                    [**]


 


ImmuPharma Switzerland shall use Commercially
Reasonable Efforts to facilitate the grants of sublicenses by Anesta on the
terms and conditions hereof.


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


9
















 


3.3           Co-Promoting.
Clause 3.2 shall not prevent Anesta, its Affiliates or Sub-Licensees from
selling Finished Goods in the Territory in conjunction with a co-promoter. For
these purposes, a “co-promoter” shall mean an Independent Third Party which
sells Finished Goods.


 


4.             Trademark Milestone Payments


 


4.1           Events.
Anesta shall make the following irrevocable and non-conditional payments to ImmuPharma Switzerland  upon
the occurrence of the following trademark milestone events (each a “Trademark
Milestone” and collectively, the “Trademark Milestones”):


 


(A)       [**] the end of the
first Commercial Year in which Net Sales of the Licensed Product in conjunction
with the Licensed Trademark in any and all countries of the Territory for such
Commercial Year exceed [**]; and


 


(B)       [**] the end of the
first Commercial Year in which Net Sales of the Licensed Product in conjunction
with the Licensed Trademark in any and all countries of the Territory for such
Commercial Year exceed [**]; and


 


(C)       [**] the end of the
first Commercial Year in which Net Sales of the Licensed Product in conjunction
with the Licensed Trademark in any and all countries of the Territory for such
Commercial Year when sales exceed [**];


 


4.2           Payment Terms.
For the avoidance of doubt:


 


(A)               The
Trademark Milestone payments under Clause 4.1 (A), (B) and (C) shall
be cumulative, but each Trademark Milestone payment shall be due and payable
only once in respect of the first time that the relevant Trademark Milestone
event occurs in relation to the Licensed Product; and


 


(B)               The
payment of each Trademark Milestone payment is not conditional or dependant in
any way upon whether or not any application or registration of the Licensed
Trademarks occurred in any country of the Territory in which Net Sales of the
Licensed Product in conjunction with the Licensed Trademarks occurred prior to
the reaching of such Trademark Milestone.


 


(C)               The
payment of each Trademark Milestone payment is not conditional or dependent in
any way upon whether or not any approvals for price or reimbursement are
obtained for the Licensed Product in conjunction with the Licensed Trademarks
in any country of the Territory.


 


(D)               If
more than one Trademark Milestone is achieved for the first time in any given
calendar year following the end of any Commercial Year therein, then the
Trademark Milestone payments in respect of each such Commercial Milestone shall
become due and payable.


 


5.             Running Royalties


 


5.1           Rates. As
further consideration for the licenses and rights hereby granted, Anesta shall
pay to ImmuPharma Switzerland running royalties based on the Net Sales for each
Commercial Year as set out below (the “Running Royalties”):


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


10

















 


(A)       in respect of the
portion, if any, of all Net Sales of Licensed Product in conjunction with the
Licensed Trademark in any and all countries of the Territory of less than [**]
in any given Commercial Year, the Running Royalties shall be [**]; and


 


(B)       in respect of the
portion, if any, of all Net Sales of Licensed Product in conjunction with the
Licensed Trademark in any and all countries of the Territory over [**] and in
any given Commercial Year, the Running Royalties shall be [**] and


 


for as long as no Ordinary
Termination of the Development and Commercialization Agreement (as defined in
Clause 32.1 of the Development and Commercialization Agreement) has occurred in
any country of the Territory. Upon Ordinary Termination of the Development and
Commercialization Agreement as a whole or in any country of the Territory,
Anesta shall pay to ImmuPharma Switzerland [**] marketed in conjunction with
the Licensed Trademark in the entire Territory or, if the Ordinary Termination
is for a specific country, in such country of the Territory.


 


5.2           Significant
Generic Competition. [**]


 


5.3           Combination
Products. In the event a Combination Product is sold by
Anesta in conjunction with the Licensed Trademarks, the Net Sales from the
Combination Product, for the purposes of determining Running Royalties and the
Trademark Milestone payments, shall be determined by multiplying the Net Sales
of the Combination Product (as defined in the standard Net Sales definition),
during the applicable reporting period, by the fraction, A/A+B, where A is the
weighted (by sales volume) average sale price of the Licensed Product or
Licensed Molecules when sold separately in finished form and B is the weighted
(by sales volume) average sale price of the other product(s) included in
the Combination Product when sold separately in finished form, in each case
during the applicable reporting period or, if sales of both the Licensed
Product or Licensed Molecules and the other product(s) did not occur in
such period, then in the most recent reporting period in which sales of both
occurred. In the event that such average sale price cannot be determined for
both the Licensed Product or Licensed Molecules and all other products(s) included
in the Combination Product, Net Sales for the purposes of determining Trademark
Milestone payments and Running Royalties shall be mutually agreed by the
Parties based on the relative value contributed by each component, such
agreement not to be unreasonably withheld.


 


6.             Timing and Statement of Royalty and Trademark
Milestone Payments


 


6.1           Timing.
Payment of Running Royalties shall be made by Anesta to ImmuPharma Switzerland
on a quarterly basis within sixty (60) calendar days after the end of each
Accounting Period in respect of all Net Sales occurring in such Accounting
Period.


 


6.2           Statement.
However, within thirty (30) calendar days after the end of each such Accounting
Period, Anesta shall provide ImmuPharma Switzerland with the written statement
referred to in Clause 7.3.


 


7.             Accounting and Other Financial Provisions Relating to Royalties and
Other Payments


 


7.1           Trademark
Milestone Notification. Anesta undertakes to
notify ImmuPharma Switzerland in writing of each Trademark Milestone event
referred to in Clause 4 within fourteen (14) calendar days of its occurrence.


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


11

















 


7.2           Accounting. Anesta shall, and shall
procure that each Affiliate and each Anesta Sub-Licensee shall, keep at its
usual place of business complete proper records and books of account showing
the quantity, description and Net Sales (including gross invoiced prices and
any deductions made therefrom) of Finished Goods sold and/or used in
conjunction with the Licensed Trademarks hereunder on a product
presentation-by-product presentation basis.


 


7.3           Running
Royalties Reporting.
Within thirty (30) calendar days after each Accounting Period, Anesta shall
deliver to ImmuPharma Switzerland a detailed written statement of all Net Sales
of Licensed Product in the Territory by Anesta, its co-promoters under Clause
3.3, Affiliates and Anesta Sub-Licensees,
if any, as well as all Running Royalties due and payable to ImmuPharma
Switzerland for the relevant Accounting Period showing separately the
transactions for which Running Royalties are payable and (where relevant), the
rate of exchange used or, if it be the case, a statement that no Running
Royalties are due, whereby Clause 8.3 remains reserved.


 


7.4           Late Payment Interest.
Where any Trademark Milestones, Running Royalties, charges or other sums
payable by Anesta to ImmuPharma Switzerland hereunder remain unpaid after the
date on which they became due and payable, Anesta shall pay to ImmuPharma
Switzerland interest calculated from the date upon which the sums became due
until payment thereof at the ninety-day London Interbank Offered Rate
prevailing on the due date plus [**] (the “Late Payment
Interest”).


 


8.             Remittance, Currency and Taxes


 


8.1           Payments. All Trademark Milestone payments under Clause 4 and
all Running Royalties payments under Clause 5 shall be made electronically in US
Dollars and to such place and account as may be designated from time to time
for that purpose by ImmuPharma Switzerland to Anesta in writing. Any necessary
currency conversions in connection with Running Royalties payments shall be
made by Anesta in accordance with the financial reports prepared, and financial
reporting procedures operated, in accordance with the United States GAAP. All
payments shall be made by Anesta in accordance with Clause 8.2.


 


8.2           Withholding
Taxes. All sums payable by either
Party under this Agreement (including without limitation all Trademark
Milestones and Running Royalties payments) shall be paid in full and without any
Taxes, duties, levies, fees, charges, deduction
or withholding on any ground whatsoever, except as may be required by law.  If it shall appear that any such sum is or is
likely to be or become subject to any such Taxes, duties, levies, fees,
charges, deduction or withholding as
aforesaid the Parties shall consider together to what extent, if at all, it may
lawfully be possible to mitigate the amount of such deduction or withholding or
of the amount required to be paid as aforesaid, including making Commercially
Reasonable Efforts to make timely and procedurally correct application for
relief from withholding Tax in respect of any such payment. For any Taxes
withheld or to be withheld, each Party agrees to timely deliver all
certificates and forms as may be necessary and appropriate to establish an
exemption from Tax or file Tax returns as would be necessary with respect to
such Taxes.


 


8.3           Audits. Once each calendar year,
Anesta shall permit any professionally qualified representatives from an
independent firm of accountants appointed by ImmuPharma Switzerland (as to
which Anesta has no reasonable objection) (the “Contract Auditor”), upon [**] calendar days
advance written notice and subject to such representatives undertaking not to
disclose or use any of Anesta’s confidential information (save for the purposes
set out in this Clause 8.3), access during normal business hours to the
premises, accounts, records and relevant documentation for [**] of
Anesta, its Affiliates, Anesta Sub-Licensees and co-promoters under Clause 3.3,
and all thereof 


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


12

















 


shall provide such information
and explanations as the Contract Auditor shall reasonably require for the
purposes of verifying the statements and reporting to ImmuPharma Switzerland
and CNRS whether the provisions of this Agreement and the Development and
Commercialization Agreement are being complied with and the extent to which
Anesta has paid any sums due and payable on the terms and conditions of this
Agreement or the Development and Commercialization Agreement. ImmuPharma Switzerland shall pay all costs of the
Contract Auditor. For the avoidance of doubt, Immupharma Switzerland shall only
be permitted to conduct one audit in each calendar year, regardless of whether
it is conducted pursuant to this Agreement or the Development and
Commercialization Agreement. The report by the Contract Auditor to ImmuPharma Switzerland and CNRS (with a copy to Anesta)
shall not include any confidential information of Anesta or Cephalon, or any of
its Affiliates except to the extent reasonably necessary to report whether or
not Anesta, its Affiliates, Anesta Sub-Licensees and co-promoters under Clause
3.3, have correctly paid all sums due and payable under this Agreement or the
Development and Commercialization Agreement and, if not, the specific details
of any discrepancies. Anesta shall keep and retain, and shall ensure that its
Affiliates and Anesta Sub-Licensees and co-promoters under Clause 3.3 shall
keep and retain, such accounts, records and documentation for at least three (3) calendar
years from the date of their origin, or such longer period as may be required
by applicable law. The Contract Auditor shall also be permitted to take copies
and extracts solely for the purpose of performing the verification exercise
contemplated under this Clause 8.3. Such copies and extracts shall be returned
to Anesta on completion of the verification exercise and resolution of any
issues which have arisen. If the Contract Auditor shall determine that there is
an underpayment to ImmuPharma Switzerland
of [**] of
the particular amount due under either this Agreement or the Development and
Commercialization Agreement for any relevant Accounting Period, ImmuPharma Switzerland shall provide written notice
to Anesta and Anesta shall, within thirty (30) calendar days of the written
demand by ImmuPharma Switzerland,
pay to ImmuPharma Switzerland the
deficient amount (the underpayment) plus Late Payment Interest calculated
pursuant to Clause 7.4. If the Contract Auditor shall determine that there is
an overpayment by Anesta of [**] of the particular amount
due under either this Agreement or the Development and Commercialization
Agreement for any relevant Accounting Period, Anesta shall provide written
notice to ImmuPharma Switzerland with
reasonable detail, ImmuPharma Switzerland shall, within thirty (30) calendar
days of the written demand by Anesta, pay to Anesta the excess amount (the
overpayment) plus Late Payment Interest described in Clause 7.4. For the
avoidance of doubt, the calculation of any underpayment or overpayment shall
not be an aggregate of any underpayment or overpayment in this Agreement and
any underpayment or overpayment in the Development and Commercialization
Agreement.


 


8.4           Amicable Settlement.
Where the Parties disagree over whether or not any amounts are payable
following any verification by the Contract Auditor under Clause 8.3 their chief
financial officers (or appropriately qualified senior management who are
designated by such chief financial officers) shall discuss the disagreement in
good faith with the Contract Auditor who performed the verification exercise.
If the matter is not resolved within one (1) calendar month of the date
any written demand is made under the last sentence of Clause 8.3, the matter
shall be referred to the Oversight Committee. If not agreed within the
Oversight Committee within fifteen (15) Business Days of such referral, either
Party may elect to have the matter determined by a senior professionally
qualified representative of the firm of an independent firm of accountants to
be reasonably agreed by the Parties, which may or may not be the Contract
Auditor who performed the verification exercise, acting as an expert.  Such expert determination shall be final and
binding upon the Parties. Notwithstanding anything to the contrary herein, the
resolution of any Dispute under this Clause shall be made under this Clause 8.4
instead and in lieu of Clause 28.


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


13

















 


8.5           CNRS Rights. It is understood and acknowledged by the
Parties that CNRS pursuant to the CNRS Agreements has the right to inspect and
review the Net Sales figures for the purpose of calculating their Running
Royalties due by ImmuPharma Switzerland and that as a consequence all rights of
ImmuPharma under Clause 8.3 may also be exercised by CNRS in addition to ImmuPharma
Switzerland.  To the extent ImmuPharma
Switzerland desires to conduct an audit in any calendar year, ImmuPharma
Switzerland shall use Commercially Reasonable Efforts to agree with CNRS that
in any such calendar years only one audit shall be conducted. ImmuPharma
Switzerland shall not be permitted to conduct an audit in any calendar year in
which CNRS has already conducted or plans to conduct an audit.


 


9.             Manufacturing and Marketing of Finished Goods


 


9.1           Undertakings.
Anesta shall be responsible to ensure that for the Finished Goods: (i) all
manufacturing activities are performed in accordance with all applicable laws,
regulations, guidelines and standards, including applicable current Good
Manufacturing Practice; (ii) all manufacturing activities are performed in
facilities approved by the applicable Regulatory Authorities; (iii) all
Finished Goods conform to the applicable Specifications; and (iv) it
informs ImmuPharma Switzerland of
any inspection, the making of observations or other action by any Regulatory
Authority that concerns such manufacturing activities, provide copies of any
relevant documentation and correspondence and use all Commercially Reasonable
Efforts to enable ImmuPharma Switzerland to
comment on any response. In the event that (a) a material lawsuit or legal
proceeding is instituted against Anesta or ImmuPharma that alleges a
significant manufacturing defect and (b) ImmuPharma provides thirty (30)
days prior written notice to Anesta of its desire  to perform an
inspection and the grounds for such inspection, ImmuPharma may, at a mutually
agreeable time, inspect such manufacturing activities during normal business
hours for a reasonable amount of time. 
Unless required by law, ImmuPharma shall not disclose in any manner its
observations or any documentation resulting from its inspection, without the
prior written consent of Anesta.


 


9.2           Branding.
Anesta shall market Finished Goods under the trade name or trademark LupuzorTM,
LupusolTM or LupustatTM licensed to Anesta under this Agreement,
provided that to the extent such trade names or trademarks are not approved or
may not be used in any country in the Territory, then Anesta may select another
trade name or trademark in the Territory, to be registered and owned by Anesta,
provided that the payments pursuant to this Trademark License Agreement shall
be unaffected thereby.


 


9.3           Prior Approval. The form the trade names and
trademarks that become Licensed Trademarks that is used on the Licensed Product
or Licensed Molecules pursuant to this Clause 9 shall be subject to the prior
written approval of ImmuPharma Switzerland, provided that such approval shall (i) be
received by Anesta within ten (10) days after Anesta requests such
approval, (ii) only be required once for each such form of the Licensed
Trademark and (iii) not be unreasonably withheld by ImmuPharma
Switzerland.


 


9.4           License Disclosure. Anesta
agrees and undertakes to print or have printed on the Finished Goods package
insert the following wording: “Product under license from Immupharma (France)
S.A. and ImmuPharma AG, Switzerland” or any other legally accepted similar
wording having the same basic meaning.


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential treatment
filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under
the Securities Exchange Act of 1934, as amended.


 


14

















 


10.           General Diligence of Anesta


 


10.1         Commercialization.
During the term of this Agreement, Anesta or its Affiliates shall use
Commercially Reasonable Efforts to (i) develop, promote and market the
distribution and sale of Licensed Products or Licensed Molecules in conjunction
with the Licensed Trademarks in the Main Countries and (ii) seek to
maximise the commercial return from Licensed Products or Licensed Molecules in
conjunction with the Licensed Trademarks for the treatment of Lupus within the
Territory as a whole. For the avoidance of doubt, Anesta shall have the sole
and absolute right to determine that it is commercially reasonable to not
develop, commercialize and promote the distribution and sale of Licensed
Products or Licensed Molecules and such shall not be a breach of this Agreement
by Anesta.


 


10.2         [**]


 


10.3         [**]


 


11.           Trademark Protection


 


11.1         Registration.
Anesta shall use all Commercially Reasonable Efforts to register, prosecute and
maintain the Licensed Trademarks in any country of the Territory for which
Anesta determines within three hundred and sixty-five (365) calendar days upon
receipt of the first NDA Approval to also apply for NDAs as it thinks fit in
its sole and absolute discretion. If the Licensed Trademark is not approved or
may not be used in any such country of the Territory, then Anesta may select
another trade name or trademark in the Territory to be registered, prosecuted
or maintained by Anesta as Licensed Trademark in such country of the Territory,
provided that the payments due to ImmuPharma Switzerland under this
Trademark License Agreement shall be unaffected thereby.


 


11.2         Filing
Information. In all cases of Licensed Trademarks filed
by Anesta  for the Licensed Products or Licensed
Molecules hereunder, Anesta  shall keep
ImmuPharma Switzerland informed of all significant steps to be taken in
prosecution of such Licensed Trademarks and accordingly unilaterally amend Schedule
1 hereof in writing.


 


11.3         Cooperation.
ImmuPharma Switzerland shall provide reasonable assistance and cooperation in
connection with the activities described in this Clause 11.


 


12.           Infringement of the Licensed Trademarks


 


12.1         Suing Rights. In
the event that either ImmuPharma Switzerland or Anesta become aware of actual
or threatened infringement of a Licensed Trademark anywhere in the Territory,
that Party shall promptly notify the other Party in writing. Anesta shall have
the first right but not the obligation to bring, at its own expense, such an
infringement action against any Third Party and shall have the right to join
ImmuPharma Switzerland to such action and to name it as a party in such action.
If, in ImmuPharma Switzerland and Anesta agree that it is desirable that
ImmuPharma Switzerland bring an infringement action against any Third Party it
shall have the right to join Anesta or its Affiliates as a party to such action
and to name them in such action. Anesta shall have full control over the
conduct of such action brought by Anesta, even if ImmuPharma Switzerland is
joined with Anesta in such action, and ImmuPharma Switzerland shall have full
control over the conduct of any action brought solely by ImmuPharma
Switzerland. [**]
Whether or not it is a party to such action, in any event, ImmuPharma
Switzerland shall assist Anesta, cooperate and be joined and named in any such
action at Anesta’s request, cost and expense, and 


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


15

















 


Anesta shall assist
ImmuPharma, cooperate and be joined and named in any such action at ImmuPharma’s
request, cost and expense. All amounts recovered in such action shall be used
first for payment of Anesta’s and ImmuPharma Switzerland’s cost and expenses in
conducting such action. All other amounts recovered in any such infringement
action will be allocated exclusively to the suing Party or, if Anesta has been
assisted by ImmuPharma Switzerland, or if ImmuPharma Switzerland has been
assisted by Anesta, then [**].


 


12.2         Mutual
Information. Anesta and ImmuPharma Switzerland shall
keep each other informed of material events of any litigation or settlement
thereof concerning Licensed Products or Licensed Molecules.  Each Party shall keep the other Party
informed of any actual or threatened infringement of a Licensed Trademark.


 


13.           Infringement of Independent Third Party Rights


 


13.1         Third Party
Claims. In the event of the institution of any suit by an
Independent Third Party against ImmuPharma Switzerland, Anesta or any of their
Affiliates for infringement of a Third Party’s trademark due to the use, sale,
or distribution of Licensed Product or Licensed Molecules in conjunction with
the Licensed Trademarks anywhere in the Territory (such suit to be termed, for
the purposes of this Clause 13.1, a “Third Party Claim”), the Party sued
shall promptly notify the other Party in writing. ImmuPharma Switzerland and
Anesta shall assist one another and cooperate in any such litigation at the
other’s request without expense to the requesting Party, whereby ImmuPharma
Switzerland’s rights under Clauses 9.2 and 11.2 remain reserved.


 


13.2         Cost Sharing. If
the Relevant Conditions (as specified in Clause 13.2(C)) are all satisfied, and
if the Third Party Claim results in a settlement with the Independent Third
Party who is bringing the Third Party Claim or in a final judgment with no
realistic prospects for a successful appeal that the Licensed Trademark infringes
the relevant trade name, trademark or other intellectual property rights of
such Independent Third Party, then:


 


(A)          the Parties shall
share equally in their combined reasonable legal costs and expenses incurred in
the defense against such Independent Third Party Claim and in any damages or
other amounts awarded against them or paid by way of settlement in respect of
the past infringement of such trademarks or other intellectual property rights
of the Independent Third Party.


 


(B)           in the event that
such settlement or final judgment allows Anesta to continue to use the relevant
Licensed Trademark in the future subject to paying running royalties to such
Independent Third Party on such future use of the Licensed Trademarks for sales
of Licensed Product, [**].


 


(C)           “Relevant
Conditions” are (a) the Third Party Claim must allege that making,
using, or selling the Licensed Product or Licensed Molecules in conjunction
with the Licensed Trademarks infringes the relevant trademarks or other
intellectual property rights of the Independent Third Party who is bringing the
Third Party Claim; (b) the defense to the Third Party Claim will be
conducted by Anesta, but in consultation with ImmuPharma Switzerland; (c) no
settlement is made relating to such Third Party Claim without ImmuPharma
Switzerland’s written consent (not to be unreasonably withheld or delayed); and
(d) no license of the Licensed Trademarks shall be granted to such
Independent Third Party without ImmuPharma Switzerland’s written consent,
acting in ImmuPharma Switzerland’s absolute discretion.


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


16

















 


13.3         Orders and
Injunctions. If at any stage a final or temporary
restraining order or interlocutory or interim injunction or similar order of
any competent court is granted whereby Anesta is restrained from manufacturing,
selling or otherwise dealing with Licensed Products in conjunction with the
Licensed Trademark in the Territory, then Anesta’s obligations to purchase,
use, sell, distribute and market such Licensed Product in conjunction with the
Licensed Trademark in the Territory to which the said order or injunction
applies pursuant to this Agreement, shall be suspended for so long as such
order or injunction applies whereby it is agreed and understood that the terms
and conditions of this Clause 13.3 shall mutatis mutandis also apply in full
thereto.


 


14.           Confidentiality


 


14.1         ImmuPharma
Technical Information. Anesta undertakes to
ImmuPharma Switzerland that it shall keep all Technical Information strictly confidential
and to make the ImmuPharma Technical Information only available to such persons
within Anesta, its Affiliates, Anesta Sub-Licensees and any Third Party
contractors who have agreed to be bound by secrecy obligations no less
restrictive than those set forth herein in respect of such ImmuPharma Technical
Information as Anesta owes to ImmuPharma Switzerland hereunder, to their
advisors and representatives and to such of Anesta’s officers and employees as
are bound by obligations of confidence and on a “need to know” basis, and
Anesta shall ensure that such ImmuPharma Technical Information is not disclosed
to other persons or Entities orally or in writing, directly or indirectly, by
Anesta, any Anesta Affiliate, any Anesta Sub-Licensee or any of said contractors
or said officers and employees save that:


 


(A)          this obligation
shall not apply to Anesta to the extent that the Technical Information as
evidenced by Anesta’s written records, was lawfully known to Anesta prior to
its communication by or through ImmuPharma and was not communicated to Anesta
subject to any restrictions on disclosure or use; and


 


(B)           this obligation
shall not apply to the extent that the Technical Information is necessarily
disclosed by the sale of Licensed Products on the terms and conditions hereof
embodying any of the Technical Information; and


 


(C)           this obligation
shall not apply to the extent that the Technical Information is or becomes in
the public domain, otherwise than by any fault or breach by Anesta, its
Affiliates, Anesta Sub-Licensees or sub-contractors or other persons acquiring
the same from Anesta or any thereof; and


 


(D)          this obligation
shall not apply to Anesta to the extent that the Technical Information becomes
known to Anesta by the action of a Third Party not in breach of any obligation
of confidence;


 


(E)           this obligation
shall not apply to the extent that such Technical Information must be disclosed
by law or by order of a court of competent jurisdiction or to comply with the
requirements of any securities exchange or to any governmental or regulatory
agency in connection with an application for an IND or NDA; and


 


(F)           this obligation
shall not apply to Anesta’s use of Technical Information made available to it
by or on behalf of ImmuPharma Switzerland or its Affiliates for the prosecution
of patents, to make any regulatory filing or for publication of results of
Clinical Studies or otherwise related to the development or commercialization
of the Licensed Products or Licensed Molecules.


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


17

















 


14.2         Anesta Technical
Information. ImmuPharma Switzerland undertakes to Anesta
that it shall keep all Technical Information strictly confidential and to make
the Technical Information only available to such persons within ImmuPharma
Switzerland and its Affiliates, their advisors and representatives, and to any
Third Party contractors who have agreed to be bound by the same secrecy
obligations in respect of such Technical Information as ImmuPharma Switzerland
owes to Anesta hereunder, and to such of ImmuPharma Switzerland’s officers and
employees as are bound by obligations of confidence and on a “need to know”
basis, and ImmuPharma Switzerland shall ensure that such Technical Information
is not disclosed to other persons or Entities orally or in writing, directly or
indirectly, by ImmuPharma Switzerland, any ImmuPharma Affiliate, or any of said
contractors or said officers and employees save that:


 


(A)          this obligation
shall not apply to ImmuPharma Switzerland to the extent that the Technical
Information owned by Anesta, as evidenced by ImmuPharma Switzerland’s written
records, was lawfully known to ImmuPharma Switzerland, its Affiliates, or
sub-contractors prior to its communication by or through Anesta and was not
communicated to ImmuPharma Switzerland subject to any restrictions on
disclosure or use; and


 


(B)           this obligation
shall not apply to the extent that the Technical Information is necessarily
disclosed by the sale of Licensed Products embodying any of the Technical
Information; and


 


(C)           this obligation
shall not apply to the extent that the Technical Information is or becomes in
the public domain, otherwise than by any fault or breach by ImmuPharma
Switzerland, its Affiliates, contractors, directors or agents, or persons acquiring
the same from ImmuPharma Switzerland; and


 


(D)          this obligation
shall not apply to ImmuPharma Switzerland to the extent that the Technical
Information owned by Anesta becomes known to ImmuPharma Switzerland by the
action of a Third Party not in breach of any obligation of confidence; and


 


(E)           this obligation
shall not apply to the extent that such Technical Information must be disclosed
by law or by order of a court of competent jurisdiction or to comply with the
requirements of any securities exchange or to any governmental or regulatory
agency in connection with an application for an IND or NDA.


 


14.3         Survival and
Applicability. The obligations of confidentiality herein
shall survive for as long as the confidential information disclosed to the
other Party hereunder remains confidential. 
Such confidentiality obligation shall apply to Confidential Information
and any other confidential information exchanged between the Parties and their
Affiliates both prior to and after entering into this Agreement and, with
respect to such Confidential Information, replace any and all previous
confidentiality obligations owed by either party or its Affiliates to the other
or its Affiliates (including without limitation under the Confidentiality
Agreement).


 


15.           Public Announcements


 


15.1         This Agreement.
The Parties agree that the terms of this Agreement shall, unless the Parties
otherwise agree in writing, be treated as confidential, subject to Clauses 15.2
and 15.3.


 


15.2         Press Releases.
With regard to press releases and other announcements about the Licensed
Product or Licensed Molecules in conjunction with the Licensed Trademarks
(including with regard to development progress), it is the Parties’ intent that
they shall co-ordinate with respect to 


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


18

















 


the wording and timing of
any such announcements. Each Party shall use its best endeavours to give the
other Party a draft of each such announcement at least two (2) Business
Days in advance of its planned release and thereafter keep the other Party
promptly informed of any changes to such draft, and shall consider in good
faith any reasonable comments made on such draft(s) by such other Party.


 


15.3         Listing and other
Required Publicity. Nothing contained in this
Agreement shall prevent either Party from disclosing such information as is
required to be disclosed by law or regulatory requirement including without
limiting the generality of the foregoing the regulation of any stock exchange
on which the shares or other securities of such Party or its Affiliates or
Sub-Licensees are quoted or listed.  For
the avoidance of doubt, if either Party or its Affiliates or Sub-Licensees are
required by such laws or regulatory requirements or by any regulatory body to
make an immediate disclosure of any information, they shall be entitled to do
so.


 


15.4         Recordation of
Licensed Trademarks. ImmuPharma Switzerland
shall record each Licensed Trademark in any country in the Territory where such
recordation is appropriate under the law of such country.


 


16.           ImmuPharma Switzerland Representations and Warranties


 


16.1         Representations
and Warranties. ImmuPharma Switzerland represents and
warrants that, as of the Effective Date hereof:


 


(A)          ImmuPharma
Switzerland is validly existing under the laws of Switzerland, with full power
and authority to execute and deliver this Agreement and perform its obligations
hereunder;


 


(B)           ImmuPharma
Switzerland is not insolvent;


 


(C)           ImmuPharma
Switzerland has the corporate power to execute, deliver and enter into and
perform this Agreement and has been duly authorized by all necessary or proper
corporate action to do so;


 


(D)          this Agreement
has been duly executed by ImmuPharma Switzerland and represents a legal, valid
and binding obligation of ImmuPharma Switzerland, enforceable in accordance
with its terms;


 


(E)           ImmuPharma
Switzerland’s execution and performance of this Agreement do not conflict with,
violate or breach (i) its applicable entity formation documents, (ii) any
contractual obligations with any Third Party or (iii) any law or
regulation, and no consent is required from any Third Party or governmental
authority for ImmuPharma Switzerland to execute and perform its obligations in
this Agreement, except for (x) the expiration of the waiting period under the
Hart-Scott-Rodino Act, if applicable or (y) any other applicable antitrust
regulations or any other antitrust regulations anywhere in the Territory, to
the extent such acts or regulations are applicable hereto or to the Signed
Agreements;


 


(F)           ImmuPharma
Switzerland has not received written notice and does not have knowledge of any
fact which alleges or threatens any challenge to the rights of ImmuPharma
Switzerland, its Affiliates or Anesta or its Affiliates, or is likely to
prevent Anesta or its Affiliates from entering into the License Agreements for
the developing, making, using,


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


19
















 


importing or
selling the Licensed Product in conjunction with the Licensed Trademarks in the
Territory on the terms and conditions hereof;


 


(G)          ImmuPharma
Switzerland has not received written notice and does not have knowledge of any
fact which is likely to prevent ImmuPharma Switzerland from performing any
obligation of ImmuPharma Switzerland under this Agreement on the terms and
conditions hereof;


 


(H)          Schedule
1 sets forth a true and accurate list of all Licensed
Trademarks owned, co-owned,  licensed, or
Controlled by ImmuPharma Switzerland or to which it otherwise has rights, which
relate to the development, manufacture, use, sale or commercialization of the
Licensed Products or Licensed Molecules;


 


(I)            ImmuPharma
Switzerland is the exclusive licensee of the Licensed Trademarks. ImmuPharma
Switzerland has the right to grant the rights and licenses (or sub-licenses,
where applicable) to the Licensed Trademarks as set forth in this Agreement;


 


(J)           there
is no pending or, to the knowledge of ImmuPharma Switzerland, threatened
litigation, claim, investigation, action or proceeding that could impair the
ability of ImmuPharma Switzerland to perform its obligations under this
Agreement or the License Agreements or which would affect the validity,
enforceability or ownership of the Licensed Trademarks and ImmuPharma
Switzerland has no knowledge of any conflict with the Licensed Trademarks;


 


(K)          Schedule
2 is a listing of all material agreements entered
into by ImmuPharma Switzerland related to the Licensed Trademarks or Licensed
Technical Information.  Accurate and
complete copies of such agreements have been delivered to Anesta or its
Affiliates prior to the Effective Date. As of the date hereof, neither
ImmuPharma Switzerland, nor to the knowledge of ImmuPharma Switzerland, any
other party to such agreements is in material breach of any agreements;


 


(L)           ImmuPharma
has applied for or recorded each Licensed Trademark in every country in the
Territory as indicated in Schedule 1 hereof (as amended from time to
time under Clause 11, in
particular Clause 11.1
hereof).


 


(M)         to the best of ImmuPharma’s
knowledge, the inception, development and reduction to practice of the
ImmuPharma Trademarks and the ImmuPharma Technical Information has not and does
not constitute and has not involved the misappropriation of trade secrets of
any Third Party;


 


(N)          to the best of ImmuPharma’s
knowledge, none of the Licensed Trademarks is invalid or unenforceable and no
claim has been received by ImmuPharma, asserting the invalidity, misuse, unregistrability,
unenforceability or non-infringement of any of the Licensed Trademarks or
challenging its right to use or ownership of any of the Licensed Trademarks or
making any adverse claim of ownership thereof;


 


(O)          ImmuPharma is not aware of
any trademark or trademarks affecting the validity of the Licensed Trademarks or
any trademarks that would likely be considered confusingly similar to the
Licensed Trademarks;


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


20

















 


(P)           ImmuPharma is not aware of any
trademark or trademark applications other than the Licensed Trademarks for
which a claim of infringement could reasonably be asserted for the development,
manufacture, use, sale or commercialization of the Licensed Product in
conjunction with the Licensed Trademarks.


 


17.           Anesta Representations and Warranties


 


17.1         Representations
and Warranties. Anesta represents and warrants that, as of
the Effective Date hereof:


 


(A)         Anesta
is validly existing under the laws of Switzerland, with full power and authority
to execute and deliver this Agreement and perform its obligations hereunder;


 


(B)          Anesta
has the corporate power to execute, deliver and enter into and perform this
Agreement and has been duly authorized by all necessary or proper corporate
action to do so;


 


(C)          this
Agreement has been duly executed by Anesta and represents a legal, valid and
binding obligation of Anesta, enforceable in accordance with its terms;


 


(D)          Anesta’s
execution and performance of this Agreement do not conflict with, violate or
breach (i) its applicable entity formation documents, (ii) any
contractual obligations with any Third Party or (iii) any law or
regulation, and no consent is required from any Third Party or governmental
authority for Anesta to execute and perform the obligations in this Agreement; except for (x) the
expiration of the waiting period under the Hart-Scott-Rodino Act, if applicable
or (y) any other applicable antitrust act or regulation, to the extent
such antitrust acts or regulations are applicable hereto or to any of the
Signed Agreements anywhere in the Territory;


 


(E)          there
is no material fact which is likely to prevent Anesta from developing, making,
using, importing and selling the Licensed Product or Licensed Molecules in the
Territory;


 


(F)          Anesta
has not received written notice or does not have knowledge of any fact which is
likely to prevent Anesta from performing any obligation of Anesta under this
Agreement;


 


(G)          Anesta
has not received any written notice from any third party which alleges or threatens
any challenge to the right of Anesta to develop, make, have made, import, use
and sell the Licensed Product or Licensed Molecules in the Territory under the
Licensed Trademarks; and


 


(H)          Anesta
has the commercial, technical and financial resources and expertise available,
and intends to use the Licensed Trademarks to develop, manufacture, import, use
and sell Licensed Products or Licensed Molecules in the Territory as
contemplated by this Agreement.


 


(I)           Cephalon, as guarantor under the Parent
Guarantee Agreement, is validly existing under the laws of the United States of
America, with full power and authority to execute and deliver the Parent
Guarantee Agreement and perform its obligations hereunder;


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


21

















 


(J)           Cephalon has the corporate power to
execute, deliver and enter into and perform the Parent Guarantee Agreement and
has been duly authorized by all necessary or proper corporate action to do so;


 


(K)          the Parent Guarantee Agreement has been
duly executed by Cephalon and represents a legal, valid and binding obligation
of Cephalon, enforceable in accordance with its terms; and


 


(L)          Cephalon’s execution and
performance of the Parent Guarantee Agreement does not conflict with, violate
or breach (i) its applicable entity formation documents, (ii) any
contractual obligations with any Third Party or (iii) any law or
regulation, and no consent is required from any Third Party or Governmental
Authority for Cephalon to execute and perform the obligations in the Parent
Guarantee Agreement.


 


18.           Indemnification between the Parties


 


18.1         By
ImmuPharma Switzerland. ImmuPharma Switzerland
shall indemnify, protect and hold Anesta and its Affiliates harmless against
any claims, demands, suits or causes of action asserted or brought by
Independent Third Parties, including all judgments, damages and costs
(including reasonable attorney’s fees) resulting therefrom, at any time arising
from:


 


(A)      any
failure by ImmuPharma Switzerland to provide Anesta with significant information
or data in its possession regarding the Licensed Trademark to the extent that
such information or data were not already known by Anesta;


 


(B)      with respect to Finished Goods manufactured
by or on behalf of ImmuPharma Switzerland pursuant to Clause 33.5 of the
Development and Commercialization Agreement, manufacturing defects which are
manufactured by or on behalf of ImmuPharma Switzerland, its Affiliates or any
permitted sub-licensees, sub-contractors or any other Third Parties acting on
behalf of ImmuPharma Switzerland;


 


(C)       ImmuPharma
Switzerland’s or its Affiliates’ or ImmuPharma’s subcontractors or any other
parties acting on behalf of ImmuPharma gross negligence or breach of the terms
of this Agreement; or


 


(D)      any
breach of ImmuPharma’s representations and warranties in this Agreement;


 


whereby ImmuPharma
Switzerland shall only have an obligation to so indemnify and hold harmless to
the extent that such liability, damages, loss, cost or expense do not arise
from the negligence, wilful misconduct or breach of this Agreement by Anesta,
its Affiliates, its Anesta Sub-Licensees or by any other Third Party acting on
behalf of Anesta.


 


18.2         By
Anesta. Anesta shall indemnify, protect and hold
ImmuPharma Switzerland and its Affiliates harmless against any claims, demands,
suits or causes of action asserted or brought by Independent Third Parties,
including all judgments, damages and costs (including reasonable attorney’s
fees) resulting therefrom, at any time arising from:


 


(A)      manufacturing defects of Finished Goods
which are manufactured by or on behalf of Anesta, its Affiliates, Anesta
Sub-Licensees or any permitted sub-contractors or any other Third Parties
acting on behalf of Anesta;


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


22

















 


(B)       Anesta’s
or its Affiliates’, Anesta’s Sub-Licensees or any permitted sub-contractors or
any other Third Parties acting on behalf of Anesta, gross negligence or breach
of the terms of this Agreement or the Development and Commercialization
Agreement or improper discharge of their obligations on the terms and
conditions of this Agreement or the Development and Commercialization
Agreement; or


 


(C)       any
breach of Anesta’s representations and warranties in this Agreement;


 


whereby
Anesta shall only have an obligation to so indemnify and hold ImmuPharma
Switzerland harmless to the extent that such liability, damages, loss, cost or
expense do not arise from the negligence, wilful misconduct or breach of this
Agreement by ImmuPharma Switzerland or ImmuPharma Switzerland’s Affiliates or
ImmuPharma Switzerland’s subcontractors or any other parties acting on behalf
of ImmuPharma Switzerland.


 


18.3         Notifications.
Each Party shall give prompt notification to the other of any claims, demands,
suits or causes of action in respect of which the first Party may assert
indemnification from the other under this Clause 18. The indemnifying Party
shall have the right, at its own cost, to defend any such claim, demand, suit
or cause of action. The indemnified Party shall have the right to be
represented by separate counsel, at its own expense, in any such claim, demand,
suit or cause of action. The indemnifying Party shall have control over any
such claim, demand, suit or cause of action and any decisions as to settlement,
method and/or terms and conditions for resolving the same shall be made by the
indemnifying Party after consultation with the other Party.


 


18.4         Assistance.
The indemnified Party agrees to perform all acts that may become reasonably
necessary or desirable, as determined by the indemnifying Party for the defense
and/or settlement of any such claim, demand, suit or cause of action. The
indemnifying Party shall reimburse the other Party for its reasonable
out-of-pocket expenses related thereto.


 


18.5         Joint
Liability. If both Clause 18.1 and Clause 18.2 apply in
respect to the same claim, demand, suit or cause of action, then ImmuPharma
Switzerland and Anesta shall be liable to indemnify each other in such ratio as
is fair and reasonable, taking into account the contribution that the factors
referred to in Clauses 18.1 (A) to (C) and Clauses 18.2  (A) to
(G) have respectively given rise to such claim, demand, suit or cause of
action. Such ratio shall be agreed between the Parties and, if not agreed,
determined using the dispute resolution procedure given in Clause 28.


 


19.           Insurance


 


From
the date on which this Agreement becomes effective until seven hundred and
thirty (730) calendar days after all Running Royalties or other running
royalties bearing licenses granted under this Agreement have expired or
terminated on the terms and conditions hereof and, each Party shall at its own
cost effect and maintain in force with reputable insurers appropriate insurance
that are commercially customary in the pharmaceutical industry in each country
of the Territory where an activity is undertaken by a Party (including without
limitation, where appropriate, product liability) in respect of its activities
concerning Licensed Products or Licensed Molecules in the Territory and shall
provide evidence of such insurance to the other Party on request.


 


20.           Disclaimer


 


20.1         EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY
LAW:


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


23

















 


(A)      IMMUPHARMA SWITZERLAND MAKES NO WARRANTY OR
REPRESENTATION AS TO THE SCOPE OF THE LICENSED TRADEMARKS;


 


(B)       IMMUPHARMA
SWITZERLAND MAKES NO WARRANTY OR REPRESENTATION THAT USE OF THE LICENSED
TRADEMARKS IN CONJUNCTION WITH THE LICENSED PRODUCTS WILL NOT CAUSE HARM OR
DAMAGE TO ANY INDIVIDUAL, ENTITY OR PROPERTY;


 


(C)       IMMUPHARMA
SWITZERLAND IS NOT LIABLE OR RESPONSIBLE FOR ANY AND ALL LIABILITY, INCLUDING
DEATH, PERSONAL INJURY, ILLNESS OR PROPERTY DAMAGE ARISING FROM PRE-CLINICAL
STUDIES, CLINICAL TRIALS, DISTRIBUTION OR SALE BY ANESTA, ITS AFFILIATES OR
ANESTA SUB-LICENSEES OF ANY GOODS, LICENSED PRODUCTS OR LICENSED MOLECULES;


 


(D)      ANESTA
IS NOT LIABLE OR RESPONSIBLE FOR ANY AND ALL LIABILITY, INCLUDING DEATH,
PERSONAL INJURY, ILLNESS OR PROPERTY DAMAGE ARISING FROM PRE-CLINICAL STUDIES,
CLINICAL TRIALS, DISTRIBUTION OR SALE UNDERTAKEN BY IMMUPHARMA SWITZERLAND, ITS
AFFILIATES OR IMMUPHARMA SWITZERLAND SUB-LICENSEES OF ANY GOODS OR LICENSED
PRODUCTS OR LICENSED MOLECULES;


 


(E)       NEITHER
PARTY MAKES ANY REPRESENTATIONS OR GIVES ANY WARRANTIES THAT ANY LICENSED
TRADEMARKS OR LICENSED PRODUCTS WILL HAVE COMMERCIAL UTILITY OR REGULATORY
ACCEPTABILITY OR MERCHANTABILITY OR SATISFACTORY QUALITY OR FITNESS FOR A
PARTICULAR PURPOSE; AND


 


(F)       NEITHER
PARTY MAKES ANY OTHER REPRESENTATIONS OR GIVES ANY OTHER WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED.


 


21.           Ordinary Termination


 


21.1         Ordinary
Termination. Subject to the terms of this Agreement, the
entire Agreement shall, on a country by country and trademark by trademark
basis, continue until the date of expiry of the last Licensed Trademark
hereunder in such country of the Territory (the “Ordinary Termination”).


 


21.2         Consequences
of Ordinary Termination. Upon expiry of this
Agreement in any country of the Territory in accordance with Clause 21.1 (but
not, for the avoidance of doubt, upon any earlier termination of this Agreement
prior to Ordinary Termination under Clause 22 unless otherwise expressly stated
in this Agreement), Anesta and its Affiliates shall have a perpetual, fully
paid-up, royalty-free, irrevocable right to use in such country of the
Territory the Licensed Trademarks for the development, commercialization and
exploitation of Licensed Products.


 


21.3         Survival
Upon Ordinary Termination. Upon Ordinary Termination
and expiry of this Agreement in accordance with Clause 21.1 in any country of
the Territory (but not, for the avoidance of doubt, upon any earlier
termination of this Agreement unless otherwise expressly stated in this
Agreement), the following Clauses and Sections shall survive expiry and the
Parties shall continue to be bound by them:


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


24

















 


(A)      This Agreement.
Clauses 1, 7.1, 7.2, 7.3 (to the extent applicable for Accounting Periods
elapsed in full or in part during the term hereof in such country), 7.4, 8 (to
the extent applicable for Accounting Periods elapsed in full or in part in such
country during the term hereof), 10.2, 11
to 19, 21.2, 21.3, 21.4 as well as 25 to 39 of this Agreement.


 


21.4         The
expiry of this Agreement shall:


 


(A)      be
without prejudice to the obligation of Anesta to pay to ImmuPharma Switzerland
all Trademark Milestones, Running Royalties and other sums accrued, due and
payable prior to the effective date of the expiry or thereafter on the terms
and conditions hereof; and


 


(B)       be
without prejudice to any right of, or remedy available to, either Party against
the other in respect of any breach of this Agreement prior to the effective
date of such expiry, but otherwise neither Party shall be entitled to compensation
on such expiry, except as expressly stated in this Agreement.


 


22.           Specific Performance and Extraordinary
Termination


 


22.1         Specific Performance. The Parties agree that this Trademark License represents unique
property that cannot be readily obtained on the open market and each Party may
be irreparably injured if this Agreement is not specifically enforced after the
breach or default by the other Party. Therefore, the other Party shall
also have the right to specifically enforce the other Party’s performance of
its obligations under this Agreement, and each Party  agrees to waive the defense in any such suit
that the other Party has an adequate remedy at law and to interpose no
opposition, legal or otherwise, as to the propriety of specific performance as
a remedy, and that the other Party shall have the right to obtain specific
performance of the terms of this Agreement without being required to prove
actual damages.


 


22.2         Breach. In
the event that either Party commits a material breach of any of the other terms
of this Agreement on its part to be performed or observed, the other Party
shall have the right to terminate this Agreement by giving one hundred twenty
(120) calendar days’ written notice to the defaulting Party; provided however
that in the case of a material breach capable of being cured, if the said
defaulting Party shall cure the said material breach within one hundred twenty
(120)  calendar days after the said notice
shall have been given, then the said notice shall not be effective.


 


22.3         Extraordinary
Termination of Development and Commercialization Agreement. In the
event that the Development and Commercialization Agreement is terminated, by
other than due to an Ordinary Termination of the Development and
Commercialization Agreement, either Party thereto in full or for any specific
country, or in the event of Non-Exclusivity (as defined in the Development and
Commercialization Agreement) as to any specific country, in each case on the
terms and conditions thereof for any reason, each of the Parties hereof shall likewise have the right
to terminate this Agreement in full, or for any such specific country, as the
case may be, forthwith by written notice.


 


22.4         Cross
Breach Under Parent Guarantee Agreement. In the
event that a material breach by Cephalon occurs under the Parent Guarantee
Agreement and that such breach by Cephalon is not cured within the curing
period set forth in that agreement or if such breach is not curable by the
nature of such breach or if Cephalon becomes insolvent or is declared bankrupt,
as defined in Clause 22.5 hereinafter, of Cephalon, ImmuPharma Switzerland shall have the right to
terminate this Agreement forthwith by written notice.


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


25

















 


22.5         Insolvency
or Bankruptcy. Either Party may, in addition to any other
remedies available to it by law or in equity, terminate this Agreement
effective on written notice to the other Party in the event the other Party
shall have become insolvent or bankrupt, or shall have made an assignment for
the benefit of its creditors, or there shall have been appointed a trustee or
receiver of the other Party or for all or a substantial part of its property,
or any case or proceeding shall have been commenced or other action taken by or
against the other Party in bankruptcy or seeking reorganization, liquidation,
dissolution, winding-up, arrangement, composition or readjustment of its debts
or any other relief under any bankruptcy, insolvency, reorganization or other
similar act or law of any jurisdiction now or hereafter in effect, or there
shall have been issued a warrant of attachment, execution, distraint or similar
process against any substantial part of the property of the other Party, and
any such event shall have continued for ninety (90) calendar days undismissed,
unbonded and undischarged. Furthermore, all rights and licenses granted under
this Agreement are, and shall be deemed to be, for purposes of Section 365(n) of
the Bankruptcy Code, licenses of rights to “intellectual property” as defined
under Section 101(56) of the United States Bankruptcy Code. The Parties
agree that in the event of the commencement of a bankruptcy proceeding by or
against one Party hereunder under the United States Bankruptcy Code, the other
Party shall be entitled to complete access to any such intellectual property,
and all embodiments of such intellectual property, pertaining to the rights
granted in the licenses hereunder of the Party by or against whom a bankruptcy
proceeding has been commenced; subject, to payment of the Trademark Milestone
amounts and Running Royalties set forth in this Agreement.


 


22.6         Change
of Control Termination Right.


 


(A)          Anesta.
ImmuPharma Switzerland may terminate this Agreement in the event that there
is a change of (defined below) of Anesta, unless prior to
such change of control Anesta (i) transfers or assigns all of its rights
and obligations under this Agreement to Cephalon or any of its Affiliates or (ii) obtains
the consent of ImmuPharma Switzerland (such consent shall not be unreasonably
withheld).  For the purposes of Clauses
22.6(A) and (B) only, a “change of control” shall be deemed to have
occurred when (i) any Entity, which is not an Affiliate of the respective
Party as at the Effective Date (the “Acquirer”), directly or indirectly
acquires ownership or control of fifty percent (50%) or more of the equity or
of the voting rights and/or otherwise acquires the ability to direct the
business affairs or the management of such Party or (ii) the party
controlling such Party shall become insolvent or shall be declared bankrupt, as
defined in Clause 22.5 hereinbefore.


 


(B)           ImmuPharma.
Anesta may terminate this Agreement in the event that there is a change of
control (defined above) of ImmuPharma Switzerland, unless prior to such change
of control, ImmuPharma Switzerland obtains the consent of Anesta (such consent
shall not be unreasonably withheld).


 


22.7         General
Extraordinary Termination Right of Anesta. Anesta may
terminate this Agreement at any time by giving ninety (90) calendar days
written notice to ImmuPharma Switzerland. 
After the first NDA Approval, Anesta may terminate this Agreement at any
time by giving one hundred eighty (180) calendar days prior written notice to
ImmuPharma.


 


22.8         Written
Termination Agreement. The Parties may terminate
this Agreement by written agreement, signed on behalf of each Party.


 


22.9         Ordinary
Termination of Development and Commercialization Agreement. In
the event that an Ordinary Termination of the Development and Commercialization
Agreement (as defined in 


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


26

















 


Clause 32.1
therein) has occurred for the Development and Commercialization Agreement as a
whole or for any specific country, this Agreement shall not terminate as a
result of such Ordinary Termination either in full or for any such specific
country, as the case may be.


 


23.           Effect of Extraordinary Termination


 


23.1         Existing
Obligations. The early termination of this Agreement
shall:


 


(A)          be
without prejudice to the obligation of Anesta to pay to ImmuPharma Switzerland
all Trademark Milestones, Running Royalties and other sums accrued, due and
payable prior to the termination of this Agreement; and


 


(B)           be
without prejudice to any right of, or remedy available to, either Party against
the other in respect of any breach of this Agreement prior to the termination
of this Agreement, but otherwise neither Party shall be entitled to
compensation as a result of such termination except as expressly stated in this
Agreement.


 


24.           Further Consequences of Extraordinary Termination.


 


24.1         Early
Termination by ImmuPharma. If this Agreement is
terminated either in full or for any specific country in the Territory (as
applicable) by ImmuPharma Switzerland pursuant to Clauses 22.2, 22.3 (solely in
the event ImmuPharma Switzerland has terminated the Development and
Commercialization Agreement due to Anesta’s breach), 22.4, 22.5 or 22.6 or by
Anesta pursuant to Clause 22.7 or in the event of a Non-Exclusivity pursuant to
Clause 22.3 hereof as to one or more specific countries of the Territory:


 


(A)          either Party shall be fully
bound to strictly comply with all terms and conditions of this Agreement until
the effective date of termination and Anesta shall pay to ImmuPharma
Switzerland and shall remain liable to ImmuPharma Switzerland to pay any and
all amounts which shall have fallen due for payment or shall have become
payable on or before the effective date of termination;


 


(B)           Anesta
shall either in full or for any single country in the Territory (as applicable)
promptly return or furnish to ImmuPharma Switzerland all information related to
the Licensed Trademarks or other information and documents provided to Anesta
by ImmuPharma Switzerland or its Affiliates, in Anesta’s or its Affiliates or
Anesta Sub-Licensees, co-promoters or sub-contractors possession or control;


 


(C)           subject
to Clause 24.1(D), Anesta, its Affiliates, Sub-Licensees, co-promoters and
sub-contractors shall either in full or for any country of the Territory (as
applicable) immediately cease to use and thereafter refrain from using the
Licensed Trademarks and the Licensed Products;


 


(D)          save
as expressly provided herein, all rights of Anesta, its Affiliates,
Sub-Licensees, co-promoters and sub-contractors hereunder and all licenses granted
to Anesta and its Affiliates hereunder shall either in full within the entire
Territory (as applicable) forthwith cease and determine and, where applicable,
Anesta shall assist ImmuPharma Switzerland in taking all steps necessary for
the removal of the name of Anesta, its Affiliates, Sub-Licensees, co-promoters
and sub-contractors from any trademarks where a Licensed Trademark has been
recorded in the name of Anesta, if any;


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


27

















 


(E)           Anesta
shall either in full or, in the event of a termination or Non-Exclusivity
pursuant to Clause 33.5 of the Development and Commercialization Agreement as
to one or more countries, for such specific countries in the Territory (as
applicable) grant to ImmuPharma Switzerland, a nonexclusive, fully paid-up,
royalty-free irrevocable license to all rights in any and all trade names and
trademarks used by Anesta exclusively with respect to Licensed Products and
Licensed Molecules and not used by Anesta with respect to any other product,
and ImmuPharma Switzerland shall assume responsibility for any registrations
therefor and may deal with such registrations as it thinks fit.


 


24.2         Early
Termination Due to Ordinary Termination of Development and Commercialization
Agreement. If this Agreement is terminated either in full or
for any specific country in the Territory pursuant to Clause 22.9, Anesta shall
be entitled to continue to use any Licensed Trademarks in the Territory or for
any such specific country, as the case may be, in return for payment to
ImmuPharma Switzerland of Running Royalties of one percent (1%) on Net Sales of
Licensed Products which are marketed using the Licensed Trademarks and to the
extent provided in Clause 5.  In such an
event, the payment provisions contained in this Agreement shall continue to
apply.


 


24.3         Early
Termination by Anesta. If this Agreement is
terminated by Anesta pursuant to Clauses 22.2, 22.3 (solely in the event Anesta
has terminated the Development and Commercialization Agreement due to ImmuPharma
Switzerland’s breach), 22.5 or 22.6:


 


(A)          Anesta and its Affiliates shall
have an irrevocable right to use in each country of the Territory the Licensed
Trademarks for the development, commercialization and exploitation of Licensed
Products or Licensed Molecules, provided that Anesta pay [**] to
ImmuPharma Switzerland until the event or events of an Ordinary Termination
have occurred pursuant to Clause 24.2, or an Ordinary Termination of the
Development and Commercialization Agreement occurs as provided in Clause 22.9.


 


24.4         Survival
Upon Extraordinary Termination. On the termination of this
Agreement (but not, for the avoidance of doubt, upon expiry of this Agreement
unless otherwise expressly stated in this Agreement) the following Clauses and
Sections hereof shall survive termination and the Parties shall continue to be
bound by them:


 


(A)          This Agreement.
Clauses 1, 7.1, 7.2, 7.3 (to the extent applicable for Accounting Periods
elapsed in full or in part during the term hereof in such country), 7.4, 8 (to
the extent applicable for Accounting Periods elapsed in full or in part in such
country during the term hereof), 10.2, 11 to 15,
18, 22.1, 24 to 39 of this Agreement.


 


24.5         Marketing. To
the extent that Anesta, its Affiliates, Sub-Licensees, co-promoters and
sub-contractors are marketing Finished Goods in the Territory on termination of
this Agreement pursuant to Clause 22 , at ImmuPharma Switzerland’s request the
Parties will make reasonable arrangements to ensure a transition of
responsibility for marketing such Finished Goods to ImmuPharma Switzerland or
its nominee whilst maintaining supply of Finished Goods to the market. The sale
of such Finished Goods by Anesta or its Affiliates, Sub-Licensees, co-promoters
and sub-contractors in the interim period shall continue to be subject to the
payment of Running Royalties to ImmuPharma Switzerland hereunder. The costs and
expenses associated with such transition and transfers shall be paid by Anesta.


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


28

















 


25.           Assignments


 


25.1         Non-Assignability.
Subject to Clause 24.2, neither this Agreement nor any of the rights and
obligations created herein is assignable by either Party without the prior
written consent of the other Party such consent not to be unreasonably withheld
or delayed, except that ImmuPharma Switzerland may assign, pledge or encumber
any claims or other entitlements for payments of money under this Agreement for
financing purposes without the consent by Anesta.


 


25.2         Exception.
Either Party shall have the right to assign the entire benefit of this
Agreement (subject to its entire burden) without the consent of the other Party
to any Entity which acquires or is a successor to its business relating to
Licensed Product or Licensed Molecules in full or in part. In addition, Anesta
shall have the right to assign all or any portion of this Agreement to Cephalon
or any Affiliate of Cephalon.


 


26.           Affiliates, Sub-Licensees and Sub-Contracting


 


26.1         Affiliates,
Sub-Licensees and Third Parties. Each Party shall use
Commercially Reasonable Efforts to ensure that its Affiliates, Sub-Licensees,
co-promoters, permitted sub-contractors or other Third Parties acting on its
behalf hereunder comply with such Party’s obligations on the terms and
conditions of this Agreement.


 


26.2         Liability.
Each Party reserves the right to fulfil its obligations under this Agreement
subject to the terms and conditions hereof through its Affiliates,
Sub-Licensees, co-promoters and sub-contractors permitted hereunder, and to
exercise its rights under this Agreement through its Affiliates, Sub-Licenses
and permitted sub-contractors provided however that such Party shall remain
responsible to the other Party for any and all of their actions in their
fulfilment of such obligations and exercise of such rights to the respective
other Party hereunder.


 


27.           Oversight Committee


 


27.1         Development
and Commercialization Agreement. The Oversight Committee
described in Clause 38 of the Development and Commercialization Agreement shall
consist of one representative of each Party which representative shall be a
member of each Party’s executive management or board of directors; such
representatives shall use their good faith efforts to mutually agree upon the
proper course of action to resolve any Dispute referred to the Oversight
Committee.


 


28.           General Dispute Resolution


 


28.1         Applicability.
The provisions of this Clause 28 shall apply in relation to any Dispute.


 


28.2         Amicable
Settlement. Any Dispute arising pursuant to or in connection with the present Agreement or the validity,
interpretation, breach or enforcement hereof
shall first be referred to the Oversight Committee, to the extent that it has
not already been so referred, and the Parties shall use all Commercially
Reasonable Efforts to amicably settle
such disputes within ninety (90) calendar days upon written notification of
such dispute by either Party to
the respective other Party with
copy to the Oversight Committee.


 


28.3         Mediation. If
any Dispute is not resolved by the Oversight Committee within ninety (90)
Business Days after such dispute is referred to it, or such longer period as
the Oversight Committee may collectively and unanimously agree in writing, the
Parties agree first to attempt to settle it by mediation in accordance with the
United Centre for Effective Dispute Resolution Model


 


**   Portions of the Exhibit have been omitted and
have been filed separately pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.


 


29
















 


Mediation
Procedure (www.cedr.co.uk). The place of mediation shall be London, England and
the language to be used in the mediation proceedings shall be English. The Parties covenant that they will
participate in the mediation in good faith, and that they will share equally in
its costs. All offers, promises, conduct and statements, whether oral or
written, made in the course of the mediation by any of the Parties, their agents, employees,
experts and attorneys, and by the mediator or any of its employees, are
confidential, privileged and inadmissible for any purpose, including
impeachment, in any arbitration or other proceeding involving the Parties, provided that evidence that
is otherwise admissible or discoverable shall not be rendered inadmissible or
non-discoverable as a result of its use in the mediation.


 


28.4                           Mediation
Notice. To initiate mediation, a Party must give notice in
writing (such notice to be hereinafter referred to as a “Mediation Notice”)
to the other Party requesting a mediation. 
A copy of the request should be sent to the Centre for Effective Dispute
Resolution. If one of the Parties refuses to participate in mediation then
either Party may initiate arbitration in accordance with Clause 28.5 hereof.


 


28.5                           Arbitration. If
and to the extent that, any such dispute, claim or controversy has not been
settled through mediation pursuant to Clauses 28.3 and 28.4 within (i) thirty
(30) calendar days after the date the Mediation Notice is received or (ii) ten
(10) calendar days after one of the Parties refuses to participate in
mediation, such dispute, claim or controversy shall, upon the filing of a
Request for Arbitration by either Party,
be referred to and finally resolved by arbitration under the international
commercial arbitration rules of the International Chamber of Commerce;
such rules are deemed to be incorporated by reference into this section.
The place of arbitration shall be London, England. The arbitration proceedings
shall be conducted in the English language and the arbitration award shall be
in English. Notwithstanding anything else in the rules of
the International Chamber of Commerce, the arbitrator or arbitrators for such
arbitration shall have no relation to either Party, CNRS, or any affiliate
thereof, and the decision in the arbitration proceeding shall be determined by
the vote of a majority of the arbitrators.


 


28.6                           Injunctive
Relief. Notwithstanding anything in this Agreement, the
Option Agreement or the Development and Commercialization Agreement, the
Parties may seek injunctive relief and specific performance in any court
without first adhering to the dispute resolution and arbitration procedures in
this Agreement.


 


29.                                 Waiver


 


29.1                           No
Limitations. No relaxation, forbearance, delay or
indulgence by either Party in enforcing any of the terms and conditions of this
Agreement or the granting of time by either Party to the other shall prejudice,
affect or restrict the rights and powers of that said Party hereunder nor shall
any waiver by either Party of any breach hereof operate as a waiver of or in
relation to any subsequent or any continuing breach hereof.


 


29.2                           Enforcement. A
waiver by one Party of a breach by the other of any term of this Agreement
shall not prevent the subsequent enforcement of that term and shall not be deemed
a waiver of any subsequent breach.


 


30.                                 General
Assurances


 


Either Party shall at any
time upon the request of the other do and execute all such acts, deeds,
documents and things as may reasonably be required by the other to perfect and
complete the grant of any rights and licenses conferred upon the other,
including in particular (without


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


30

















 


prejudice to the generality
of the foregoing) entry into forms of license or other instruments confirming
such rights for registration with appropriate authorities.


 


31.                                 Severability


 


In the event that any Clause
or any part of any Clause contained in this Agreement is declared invalid or
unenforceable by the judgment or decree by consent or otherwise of a Court of
competent jurisdiction not subject to appeal, all other Clauses or parts of
Clauses contained in this Agreement shall remain (in so far as they have become
effective in accordance with this Agreement) in full force and effect and shall
not be affected thereby for the term of this Agreement.


 


32.                                 Entire
Agreement


 


This Agreement and any
documents referred to herein set forth the entire agreement and understanding
of the Parties relating to the subject matter hereof, and merge all prior
discussions between them and all prior memoranda of intent or understanding.
Neither Party shall be bound by any definition, condition or representation
other than as expressly stated in this Agreement or as subsequently set forth
in writing and signed by the Party to be bound.


 


33.                                 Titles
and Headings


 


The titles of this Agreement
or any part within it and the headings to sections, Clauses and schedules in
this Agreement are included for the purpose of ease of reference only and shall
not have any effect on the construction and interpretation of the terms hereof.


 


34.                                 Costs of
Preparation


 


The Parties hereto shall pay
their own respective legal costs incurred in the preparation of this Agreement.


 


35.                                 Notices


 


Any notice or other document
to be given under this Agreement shall be given by sending the same in a
registered, prepaid airmail letter or by facsimile transmission to the address
of the relevant Party set out below or to such other address as such Party may
have notified to the other for the purposes hereof.  Any notice sent by post shall be deemed (in
the absence of evidence of earlier receipt) to have been delivered seven (7) Business
Days after despatch and in proving the fact of despatch it shall be sufficient
to show that the envelope containing such notice was properly addressed,
stamped and posted.  Any notice sent by
facsimile transmission shall be deemed to have been delivered on the next
Business Day following its dispatch.


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


31

















 


ImmuPharma Switzerland’s Address:


 


ImmuPharma AG


Kägenstrasse 12


CH-4153 Reinach


Switzerland


For the attention of the Chairman


 


With copy to:


 


ImmuPharma France SA


Technopôle


40 rue Marc Seguin


F-68200 Mulhouse


France


For the attention of the Chairman


 


And with further copy to


 


Dr. Thomas M. Rinderknecht


Rinderknecht & Burger


Grafenauweg 6


CH-6300 Zug


Switzerland


Fax: + 41 41 726 60 66


 


Anesta’s Address:


 


Anesta AG


Barrenstrase 23


6300 Zug


Switzerland


 


With copy to:


 


Cephalon, Inc.


41 Moores Road


Frazer, PA 19355


USA


Fax:  +1 610
727-7652


For the attention of the Vice President and Deputy
General Counsel


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


32

















 


And with further copy to


 


Ballard Spahr Andrews &
Ingersoll, LLP


1735 Market Street


51st Floor


Philadelphia, Pennsylvania


USA


Fax:  +1 215
864 9043


For the attention of:  Brian D. Doerner


 


Any notice or other document
served by one Party on the other in accordance with the terms of this Agreement
shall be in the English language and shall not be validly served unless this
condition is complied with.


 


36.                                 Force
Majeure


 


36.1                           Neither
ImmuPharma Switzerland nor Anesta (as the case may be) shall be held in breach
of its obligations hereunder to the extent only that due performance or
observance of such obligation is prevented or delayed by reason of act of God,
war or other hostilities, civil commotion, strikes, trade disputes, acts or
restraints of government, imposition or restrictions of imports or exports or
any other circumstances of a similar type, in each case beyond the reasonable
control of the respective Parties.


 


36.2                           The
Party affected by an event referred to in this Clause 36.2 shall forthwith
notify the other Party of the nature and effect of such event and both Parties
shall where the same is practicable use every reasonable endeavour to minimise
such effect and to comply with the respective obligations herein contained as
nearly as may be in their original form.


 


37.                                 No
Agency, Partnership or Joint Venture


 


Nothing in this Agreement shall be construed as
giving rise to the relationship of principal and agent, partnership or joint
venture or entitle either Party to make any representation enter into any
contract give a warranty or incur any liability on behalf of or pledge the
credit of the other Party and neither Party shall have authority or power to
bind the other Party or to contract in the name of and create a liability
against the other Party in anyway or for any purpose.


 


38.                                 Benefit
to Third Parties


 


No Party who is not a Party to this Agreement shall have any rights to
enforce any term of this Agreement, except where any rights or claims have been
validly assigned to any Third Party pursuant to Clause 24.


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


33

















 


39.                                 Governing
Law


 


This
Agreement shall be governed by and construed and interpreted in accordance with
the laws of Switzerland with the exclusion of the Vienna Convention on the
International Sale of Goods and without reference to the principles of
conflicts of laws thereof. To the extent that any relationship between the
Parties hereto or thereto by applicable mandatory law is subject to any other
law, such other law shall govern such relationship only, and all other
relationships shall remain governed by the laws of Switzerland.


 


[Signature Page Follows]


 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 


34

















 


IN WITNESS
WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT TO BE EFFECTIVE AS OF THE
EFFECTIVE DATE:


 


 


	
  IMMUPHARMA AG

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/ Robert Zimmer

  	
   

  
	
  Name:

  	
  Robert Zimmer

  	
   

  
	
  Title:

  	
  Chairman of the Board

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  In the presence of:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ANESTA AG

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ J. Kevin Buchi

  	
   

  
	
  Name:

  	
  J. Kevin Buchi

  	
   

  
	
  Title:

  	
  Chairman

  	
   

  
	
   

  	
   

  	
   

  
	
  In the presence of:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ESCROW AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   /s/ Jürg Burger

  	
   

  
	
  Name:

  	
  Jürg Burger

  	
   

  
	
  Title:

  	
  Partner

  	
   

  
								



 


**   Portions of
the Exhibit have been omitted and have been filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.