Exhibit 10.1


 


Development and Commercialization Option Agreement


 


between


 


ImmuPharma (France) S.A.


as “ImmuPharma
France”


 


and


 


ImmuPharma AG, Switzerland


as “ImmuPharma AG”


 


on the one hand


 


and


 


Anesta AG


as “Anesta”


 


and


 


Cephalon, Inc.


as “Cephalon”


 


relating to


 


Lupuzor


 


**   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
DEVELOPMENT AND COMMERCIALIZATION OPTION AGREEMENT is
dated November 21, 2008 and is made


 


BETWEEN:


 


(1)           ImmuPharma (France) S.A., incorporated in
France and having its registered office at 5, Rue du Rhone, F-68100 Mulhouse,
France (“ImmuPharma France”); and


 


(2)           ImmuPharma AG,
incorporated in Switzerland and having its registered seat at Kägenstrasse 12,
CH-4153 Reinach, Switzerland (“ImmuPharma AG”) (ImmuPharma France and
ImmuPharma AG together collectively referred to as “ImmuPharma”); on the
one hand and


 


(3)           Cephalon, Inc. (“Parent”),
incorporated in the United States of America and having its principal place of
business at 41 Moores Road, Frazer, PA 19355, U.S.A.; and


 


(4)           Anesta AG,
incorporated in Switzerland and having its registered office at Baarerstrasse
23, CH- 6300 Zug, Switzerland and an Affiliate of Parent (“Anesta”)
(Parent and Anesta together collectively referred to as “Cephalon”).


 


(each and both of
ImmuPharma on the one hand as well as each and both of Cephalon and Anesta on
the other hand hereinafter are referred to as “Party” and together
referred to as “Parties”)


 


WHEREAS:


 


(A)          ImmuPharma France
owns or Controls certain proprietary rights, titles and interest in certain
Patents and certain valuable Technical Information relating to its Lupuzor
product, pursuant to certain licence, co-operation and co-ownership agreements
with the CNRS (all capitalized terms as hereinafter defined);


 


(B)           ImmuPharma AG
owns certain proprietary rights, titles and interest in certain trademarks,
including the trademark “Lupuzor”;


 


(C)           ImmuPharma France
conducted various Pre-Clinical and Clinical Studies (as hereinafter defined)
with the Lupuzor product and it appears that the Lupuzor product may be capable
of being further developed and commercialized as a treatment for Lupus;


 


(D)          Anesta wishes to
develop and commercialise ImmuPharma’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, subject to ImmuPharma France
obtaining certain results in the phase IIb clinical trial currently being
conducted on behalf of ImmuPharma France, which should show efficacy and safety
data for the Lupuzor product; and


 


(E)           ImmuPharma France
has agreed to grant Cephalon an option for an exclusive license to develop,
make, use and sell its Lupuzor product in the Territory as Licensed Product (as
hereinafter defined) and ImmuPharma AG has agreed to grant Cephalon an option
for an exclusive licence to use and commercially exploit the trademark
“Lupuzor”, all subject to the terms and conditions hereinafter specified.


 


**   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

















 


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, the Parties hereby, intending to be legally bound, agree as
follows:


 


Definitions


 


1.1           Definitions.
For purposes of this Agreement the following terms shall have the following
meanings:


 


(A)          “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 Entity.


 


(B)           “Breach
Notice” shall have the meaning set forth in Section 12.


 


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


 


(D)          “Cephalon
Guarantees” shall have the meaning set forth in Schedule 1-C.


 


(E)           “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 authorisation safety studies, quality of life
studies and pharmacoeconomic studies.


 


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


 


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


 


(H)          “CNRS/ImmuPharma
License Agreement” means the license agreement L05152 executed between CNRS
and ImmuPharma on September 27, 2005 and all subsequent amendments as
appended in Schedule 4.


 


**   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

















 


(I)            “CNRS
Lupuzor Patents” means those Patents which
are the subject under the CNRS/ImmuPharma License Agreement and which are
identified as Brevet1 and Brevet2 therein.


 


(J)            “CNRS
Confirmation” shall have the meaning set forth in Section 9.1(R).


 


(K)          “CNRS
Technical Information” means any and all Technical Information Controlled
by ImmuPharma on or after the Effective Date, which is owned, co-owned or
Controlled by CNRS, to the extent such Technical Information relates to the
Licensed Molecules or the Licensed Product.


 


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


 


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


 


(N)          “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.


 


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


 


(P)           “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.


 


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


 


(R)           “Development
and Commercialization Agreement” means the certain development and
commercialisation agreement between ImmuPharma France and Anesta set forth in Schedule
1-A hereto, which  shall become
effective upon payment of the Decision Payment by, in the discretion of
Cephalon, either or both of Cephalon or Anesta.


 


(S)           “Effective
Date” means November 21, 2008.


 


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


 


(U)          “Escrow
Agent” means Rinderknecht & Burger, Grafenauweg 6, CH-6300 Zug,
Switzerland, acting as escrow agent for the Signed Agreements on behalf of
ImmuPharma and Cephalon pursuant to Section 3.3.


 


(V)           “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 


 


**   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

















 


Molecules or the
Licensed Products which are owned, co-owned or Controlled by ImmuPharma, other
than the CNRS Lupuzor Patents, 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.


 


(W)         “ImmuPharma Technical Information” means any and all Technical
Information owned or co-owned by ImmuPharma on or after the Effective Date
which is related to the Licensed Molecules or the Licensed
Product and only to the extent it is so related thereto, including any and all
ImmuPharma Technical Information added to the Licensed Technical Information
pursuant to Clause 20.6 of the Development and Commercialization Agreement.


 


(X)          “Interim
Phase IIb Study Report” [**]


 


(Y)           “Know-How”
means (a) all biological, chemical, pharmacological, biochemical,
toxicological, pharmaceutical, physical and analytical, pre-clinical and
clinical information and data, technical information, trade secrets,
specifications, instructions, processes, formulae, expertise, information and
documentation relating to the development, registration, use, safety, quality
control, manufacturing, or commercialisation of the Licensed Product or
Licensed Molecules Controlled by ImmuPharma as of the date hereof or obtained
by ImmuPharma or either or both of Cephalon and Anesta hereafter, including,
without restriction, all know how related to the Licensed Patents and the
Licensed Technical Information obtained during the term hereof, which is
Controlled by ImmuPharma and which ImmuPharma has the right to license to
Cephalon or Anesta and which know-how is necessary or useful for the
development, registration, use, manufacture and commercialization of the
Licensed Product or Licensed Molecules on the terms and conditions hereof and (b) all
other technical information owned, co-owned, Controlled or developed by or on
behalf of ImmuPharma or any Affiliate, licensee or sub-contractor thereof
relating to the Licensed Patents or the Licensed Technical Information (as the
case may be).


 


(Z)           “Know-How
Access and Option Payment” shall have the meaning ascribed to it in Section 4.


 


(AA)       “License
Agreements” means the Development and Commercialization Agreement (as
defined) and the Trademark License Agreement (as defined) if referred to
collectively.


 


(BB)        “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.


 


(CC)        “Licensed
Patents” means the:


 


(1)        ImmuPharma
Patents; and


 


(2)        Third
Party Patents.


 


**   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

















 


(DD)       “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.


 


(EE)         “Licensed
Technical Information” means any and all ImmuPharma Technical Information
and Third Party Technical Information.


 


(FF)         “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 the Trademark License Agreement and any amendments thereto.


 


(GG)        “Lupus”
means a systemic chronic inflammatory disease also known as Systemic Lupus
Erythematosus (SLE) as defined by the American College of Rheumatology
classification criteria for SLE (1997) and as set forth in Schedule 6
hereof.


 


(HH)       “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.


 


(II)           “Lupuzor
Trial” means the clinical Phase IIb trial for the Licensed Product or
Licensed Molecules in Systemic Lupus Erythematosus and for a 3-months treatment
regime of humans, as currently being conducted on behalf of ImmuPharma France,
under the protocol title “A Phase IIb,
Multicenter, Randomized, Double-Blind, Placebo-Controlled Dose-Ranging Study to
Evaluate the Safety, Tolerability and Efficacy of Two Doses of Subcutaneous
IPP-201101 Plus Standard of Care, Versus Placebo Plus Standard of Care in
Subjects with Systemic Lupus Erythematosus (SLE) and under the
ImmuPharma Protocol Number: IP004, as such protocol shall be amended in the
sole and reasonable discretion of ImmuPharma France from time to time.


 


(JJ)          “Manufacturing
Data” means all Know-How and Technical Information relating to the
manufacture of the Licensed Product or Licensed Molecules.


 


(KK)       “Non-Execution”
shall have the meaning set forth in Section 6.3.


 


(LL)         “Option”
shall have the meaning set forth in Section 2.


 


(MM)     “Option
Period” means the period which starts on the Effective Date and ends on the
date which is thirty (30) calendar days after both of Cephalon and Anesta
receive from ImmuPharma, in writing, the Interim Phase IIb Study Report.


 


(NN)       “Option
Exercise” means as set forth in Section 3.1 hereof.


 


(OO)       “Option
Payment Date” shall have the meaning set forth in Section 3.2.


 


(PP)         “Patents”
means any and all of the following to the extent they relate to the Licensed
Molecules or the Licensed Product:


 


(1)        patents
and patent applications;


 


(2)        utility
models and utility model applications;


 


**   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

















 


(3)        substitutions,
divisions, continuations, continuations-in-part, reissues, renewals,
registrations, confirmations, re-examinations, patent term extensions and the
like, and any provisional applications, of any such patents or patent
applications, utility models and utility model applications;


 


(4)        improvements
of any of the foregoing;


 


(5)        foreign
or international equivalents of any of the foregoing; and


 


(6)        any
other patents which may issue from the foregoing.


 


(QQ)       “Positive
Decision Notice” shall have the meaning set forth in Section 3.1.


 


(RR)        “Pre-Clinical
Study” means any one of those studies, other than Clinical Studies and
studies intended to generate Manufacturing Data, carried out on the Licensed
Product or Licensed Molecules which are required to be carried out in order to
obtain the grant of an IND or NDA, including without limiting the generality of
the foregoing toxicology, pharmacokinetics, drug metabolism and pharmacology
studies, in each case which do not involve administration of Licensed Product
or Licensed Molecules to humans (and “Pre-Clinical Studies” shall be
construed accordingly).


 


(SS)         “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.


 


(TT)        “Signed
Agreements” shall have the meaning set forth in Section 3.3.


 


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


 


(VV)        “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.


 


(WW)     “Technical
Information” means any and all proprietary information, methods, procedures,
designs, data discoveries, techniques, formulae and intellectual property of
any kind relating to the Licensed Product or Licensed Molecules hereunder and
shall include, without limitation, Know-How, Manufacturing Data and the results
of and documentation associated with Pre-Clinical Studies and Clinical Studies.


 


(XX)       “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 as provided for in Clause
33.5 of the Development and Commercialization Agreement.


 


(YY)        “Third
Party License Agreements” shall have the meaning set forth in Section 9.1(M).


 


**   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

















 


(ZZ)        “Third
Party” or “Third Parties” 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.


 


(AAA)   “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 or 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.


 


(BBB)     “Third
Party Technical Information” means the CNRS Technical Information and any
and all other Technical Information Controlled by ImmuPharma on or after the
Effective Date, but not including the ImmuPharma Technical Information.


 


(CCC)     “Trademark
License Agreement” means the certain trademark license agreement between
ImmuPharma AG and Anesta set forth in Schedule 1-B hereto, which shall
become effective upon ImmuPharma AG’s receipt of the Decision Payment.


 


1.1           The “Sections”
of this Agreement are the numbered provisions of this Agreement which are not
contained in the Schedules to this Agreement. 
The “Clauses” of this Agreement are the numbered provisions which
are contained in Schedule 1 of this Agreement.


 


2.             Grant of
Option


 


During the Option
Period, ImmuPharma hereby grants on the terms and conditions hereof an
exclusive and irrevocable right and option to each and both of Cephalon and
Anesta (the “Option”) to acquire the licenses and sub-licenses described
in the (i) Development and Commercialization Agreement and (ii) Trademark
License Agreement.


 


3.             Exercise
of Option


 


3.1           Cephalon
shall have the right, in its sole and absolute discretion, to exercise the
Option within the Option Period by sending, acting also on behalf and for the
account of Anesta, a written notice to ImmuPharma, indicating a final decision
to exercise the Option (“Positive Decision Notice” or the “Option
Exercise”).


 


3.2           Upon
Option Exercise, as described above in Section 3.1, payment of the
Decision Payment by Cephalon to ImmuPharma shall be made after the latest of
(such latest date referred to herein as the “Option Payment Date”):


 


(A)          Thirty (30) days after the date of the Option
Exercise; and


 


(B)           To the extent the transactions contemplated in this
Agreement require filings under the Hart-Scott-Rodino Act or any other
applicable antitrust regulation, within ten (10) Business
Days after the expiration or
termination of the waiting period under the Hart-Scott-Rodino Act or such other
applicable antitrust regulation.


 


**   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

















 


3.3           For the avoidance of doubt, (x) the License
Agreements and (y) the Cephalon Guarantees shall be executed by all
Parties required to execute the License Agreements and the Cephalon Guarantees
on or before the execution of this Agreement. The License Agreements and the
Cephalon Guarantees (the “Signed Agreements”) shall come in force and
effect, however, only after the later of (i) Option Exercise, as described
in Section 3.1, and (ii) the payment of the Decision Payment, as
described in Section 3.2; and shall have no legal effect whatsoever before
the Option Exercise and the payment of the Decision Payment.  All signed copies of such Signed Agreements
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 or upon joint written instructions by both Parties, the Escrow
Agent shall release one fully executed copy of this Agreement, signed by
ImmuPharma, Cephalon and the Escrow Agent, to each of the signatories hereof. Should either (i) the condition
described under clause (i) above not occur within the Option Period or (ii) the
Decision Payment not be made by the Option Payment Date as provided under
clause (ii) above, unless the Escrow Agent has received joint written
instructions by both Parties to the contrary, the Escrow Agent shall destroy
all Signed Agreements.


 


4.             Know-How Access and Option
Payment


 


As consideration for granting access
to certain know-how and information, including the Interim Phase IIb Study
Report relating to Lupuzor, for granting the Option and for the other
representations, warranties and covenants set forth herein, Cephalon shall pay
to ImmuPharma an amount of fifteen million US Dollars (US$15,000,000) (the “Know-How
Access and Option Payment”).  The
Know-How Access and Option Payment shall be made by Cephalon within five (5) Business
Days after the receipt by Cephalon of (i) this Agreement, duly executed by
each Party and the Escrow Agent and (ii) a written confirmation from the
Escrow Agent that the Escrow Agent has received each of the Signed Agreements,
duly executed by each Party and the Escrow Agent (as applicable), and subject
to Section 12, shall be non-refundable, even if Cephalon should not
exercise the Option on the terms and conditions hereof.


 


5.             Effectiveness of Option and License Agreements; Conflicts Between this
Agreement and the License Agreements as well as with the CNRS Agreements


 


5.1           Option.  The Option hereunder shall become granted and
exercisable upon ImmuPharma’s receipt of the Know-How Access and Option
Payment.


 


5.2           License
Agreements and Cephalon Guarantees.  Notwithstanding the signature of this
Agreement, the License Agreements and the Cephalon Guarantees shall not become
effective other than in accordance with the terms and conditions of Section 3
hereof.


 


5.3           Proviso.  If the License Agreements become effective,
then where there is any conflict between the terms of this Agreement and any or
both of the License Agreements, the terms and provisions of the License
Agreements shall prevail over the conflicting terms and provisions of this
Agreement.


 


6.             Exclusivity, Positive Decision
and Other Matters


 


6.1           Undertakings
by ImmuPharma. ImmuPharma shall during the Option Period:


 


(A)          not
enter into any negotiations or agreement with any Third Party whereby such
Third Party would be granted any interest in or rights to use the Licensed
Patents, the Licensed Technical Information or the Licensed Trademarks in the
Territory;


 


**   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

















 


(B)           use
Commercially Reasonable Efforts, to the extent within the control of
ImmuPharma, to advance the Lupuzor Trials;


 


(C)           use
Commercially Reasonable Efforts to work together with Cephalon Inc. and Anesta
to reach a reasonable agreement on the format of the Interim Phase IIb Study
Report as promptly as possible; in the event that the Parties shall not be able
to reach such an agreement on the format of the Interim Phase IIb Study Report
by December 31, 2008, ImmuPharma shall be entitled to submit such Interim
Phase IIb Study Report to Cephalon Inc. and Anesta in the format as recommended
in ICH E3; Guideline for Industry Structure and Content of Clinical Study
Reports as reasonably presented to ImmuPharma by the CRO appointed by
ImmuPharma to conduct the Lupuzor Clinical Trials, which CRO Cephalon and
Anesta hereby represent and warrant to have been audited by Cephalon, to
Cephalon’s and Anesta’s full satisfaction.


 


(D)          provide
Cephalon Inc. with copy to Anesta with the Interim Phase IIb Study Report
within seven (7) Business Days of receipt of such report by ImmuPharma;


 


(E)           use
Commercially Reasonable Efforts, to the extent within the control of
ImmuPharma, to provide Cephalon Inc. with copy to Anesta with the Interim Phase
IIb Study Report, if possible, by January 31, 2009; Cephalon Inc. and
Anesta each severally acknowledge that ImmuPharma shall not be held in breach
of this Agreement, if the Interim Phase IIb Study Report, despite the
Commercially Reasonable Efforts of ImmuPharma to cause the appointed CRO to
deliver the report in time, shall not be delivered to Cephalon Inc. with copy
to Anesta by this date;


 


(F)           keep
all information and data regarding the Interim Phase IIb Study Report strictly
confidential, subject to any disclosure requirements of ImmuPharma or the
appointed CRO under any applicable laws or regulations;


 


(G)           make
available to Cephalon all reasonable information and documentation on Licensed
Patents, Licensed Technical Information and any other material information
relating to the Licensed Product or Licensed Molecules, including but not
limited to promptly making available to Cephalon any such information acquired
after the Effective Date;


 


(H)          use
Commercially Reasonable Efforts to continue to comply with the CNRS Agreements,
including but not limited to the Patent and Know-How License between ImmuPharma
and CNRS No. L05152 dated September 27, 2006 (the “CNRS/ImmuPharma
License Agreement”) and not agree to any amendments of any of the CNRS
Agreements which have or may have any adverse effects on the terms and
provisions of this Agreement and/or the License Agreements, without the prior
written consent of Anesta, except for Amendment No. 1 to the
CNRS/ImmuPharma License Agreement attached hereto as Schedule 4;


 


(I)            use
Commercially Reasonable Efforts to obtain from CNRS, and deliver to Cephalon, a
CNRS Confirmation (in the form described in Section 9.1(R)), signed by
both CNRS and ImmuPharma and dated as close as reasonably possible to the date
of the Decision Payment;


 


(J)            to
the extent required by the Hart-Scott-Rodino Act or any other applicable
antitrust regulations, ImmuPharma shall timely file all documents it is
required to file under the Hart-Scott-Rodino Act and such other applicable
antitrust regulations and cooperate with 


 


**   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

















 


Cephalon in
making filings and securing the termination of the waiting period under the
Hart-Scott-Rodino Act and such other applicable antitrust regulations.


 


6.2           Undertakings
by Cephalon and Anesta. Cephalon and Anesta
jointly and severally agree and undertake:


 


(A)          to
use Commercially Reasonable Efforts to work together with ImmuPharma to reach a
reasonable agreement on the format of the Interim Phase IIb Study Report; and


 


(B)           to
the extent required by the Hart-Scott-Rodino Act or any other applicable
antitrust regulations, Cephalon shall timely file all documents it is required
to file under the Hart-Scott-Rodino Act and such other applicable antitrust
regulations and cooperate with ImmuPharma in making filings and securing the
termination of the waiting period under the Hart-Scott-Rodino Act and such
other applicable antitrust regulations.


 


6.3           Non-Execution
by Cephalon or Anesta. If (i) no Option
Exercise occurs within the Option Period or (ii) the License Agreements
shall not become effective by the Option Payment Date, whichever of (i) or
(ii) is applicable (the “Non-Execution”), subject to Section 12:


 


(A)          ImmuPharma shall be free to
enter into any binding agreement with any third party whereby such third party
would be licensed to use the Licensed Products or Licensed Molecules, the
Licensed Patents, the Licensed Technical Information or the Licensed Trademarks
in the Territory or otherwise make free use of the Licensed Products or
Licensed Molecules, the Licensed Patents, the Licensed Technical Information
and the Licensed Trademarks; and


 


(B)           Neither Cephalon nor Anesta
shall have any right or claim to obtain any licence to use the Licensed
Products, Licensed Molecules, Licensed Patents, the Licensed Technical
Information or the Licensed Trademarks; and


 


(C)           The Escrow Agent shall
destroy the Signed Agreements.


 


7.             Confidentiality


 


All information
and data concerning the Licensed Product or Licensed Molecules and the
Pre-Clinical and Clinical Studies for Lupuzor (including without limitation the
Interim Phase IIb Study Results) shall be kept strictly confidential by each
and both of Cephalon and Anesta and all persons having access to such
information through either Cephalon or Anesta for a period of (i) ten (10) years
from receipt by either Cephalon or Anesta (ii) for as long as any aspect
of the Licensed Product or Licensed Molecules is covered by any valid claim
under any of the Licensed Patents, whichever of (i) and (ii) is
applicable and all also on the terms and conditions of the Confidentiality
Agreement.  Neither Cephalon nor Anesta
shall make any direct or indirect use of any such information concerning the
Licensed Product or Licensed Molecules and the Pre-Clinical and Clinical
Studies for Lupuzor other than are explicitly permitted hereunder for such
period in which the Confidentiality Agreement shall also remain in full force
and effect.


 


8.             Public Announcements


 


8.1           Secrecy.  The Parties agree that the terms of this
Agreement, including without limitation the License Agreements, shall, unless
the Parties explicitly otherwise agree in writing, be treated as confidential,
subject to Sections 8.2 and 8.3.


 


**   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
















 


8.2           Press
Releases.  During the
Option Period and until either (i) the time period in Section 6.3 has
elapsed or (ii) until the License Agreements have become effective on the
terms and conditions of Section 3 hereof, ImmuPharma shall not make any
press announcement regarding the Licensed Product or Licensed Molecules
(including with regard to development progress and scientific publications)
without the prior review by and written consent of Cephalon, which consent
shall not be unreasonably withheld. The Parties shall coordinate with respect
to the wording and timing of any such announcements and each Party shall use
its reasonable 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 by such other Party.


 


8.3           Compulsory or Necessary
Disclosures. Nothing contained in this Agreement shall
prevent either Party from disclosing in the required form such information as
is (i) 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 are quoted or listed or (ii) subject to the other party’s prior
written approval (such approval not to be unreasonably withheld) necessary for
any financing or funding transactions of any of the Parties.


 


9.             ImmuPharma Representations
and Warranties


 


9.1           Representations and
Warranties. 
ImmuPharma jointly and separately represents and warrants that, as of
the Effective Date and as of the date of the Decision Payment except as for those
events which (i) either occurred after the Effective Date and are not
within the control of ImmuPharma or (ii) were only reasonably discovered
by ImmuPharma after the Effective Date to have occurred prior to the Effective
Date and not within the control of ImmuPharma and (iii) disclosed properly
to Cephalon pursuant to Section 9.2:


 


(A)          ImmuPharma
France and ImmuPharma AG are validly existing under the laws of France and
Switzerland, respectively, with full power and authority to execute and deliver
this Agreement and perform their obligations hereunder;


 


(B)          neither
ImmuPharma France nor ImmuPharma AG is insolvent;


 


(C)          each
of ImmuPharma France and ImmuPharma AG 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 France and ImmuPharma AG and
represents a legal, valid and binding obligation of ImmuPharma, enforceable in
accordance with its terms;


 


(E)           ImmuPharma
France’s and ImmuPharma AG’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 (including
CNRS) or governmental authority for ImmuPharma to execute and perform its
obligations in this Agreement; except for the consent required under section
3.1 of the CNRS License Agreement, which consent has been delivered to Anesta,
and except for (x) the expiration of the waiting period under the
Hart-Scott-Rodino Act, if applicable, or under any other mandatorily applicable
antitrust regulations or (y) any other antitrust acts or regulations 


 


**   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

















 


anywhere in the
Territory, to the extent such acts or regulations are mandatorily applicable
hereto or to the Signed Agreements whereby it is agreed and understood, that
any and all terms and conditions hereof shall only be applicable hereto or to
the Signed Agreements to the extent they are permitted under any such
mandatorily applicable antitrust acts or regulations;


 


(F)           ImmuPharma
has not received notice and does not have knowledge of any fact which alleges
or threatens any challenge to the rights of ImmuPharma, its Affiliates or of
the rights of Cephalon or its Affiliates under this Agreement, or is likely to
prevent Cephalon or its Affiliates from developing, making, using, importing or
selling the Licensed Product or Licensed Molecules in the Territory on the
terms and conditions thereof;


 


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


 


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


 


(I)            ImmuPharma
is the exclusive licensee of the Third Party Patents, including but not limited
to the CNRS Lupuzor Patents, and the Third Party Technical Information except
for CNRS’s right to make and use the CNRS Lupuzor Patents and the CNRS
Technical Information for non-commercial research purposes as provided for in
the CNRS/ImmuPharma License Agreement, ImmuPharma has the right to grant the
rights and licenses (or sub-licenses, where applicable) to the CNRS Lupuzor
Patents, ImmuPharma Patents, ImmuPharma Technical Information, Third Party
Technical Information, the Licensed Products and the Licensed Molecules to
Anesta as set forth in the Development and Commercialization Agreement; and to
the knowledge of ImmuPharma, such CNRS Lupuzor Patents and Third Party
Technical Information are free and clear of any lien, encumbrance or security
interest;


 


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


 


(K)          ImmuPharma
owns, co-owns or Controls the Licensed Patents and the Licensed Technical
Information, free and clear of any lien, encumbrance or security interest;


 


(L)           all
Licensed Trademarks are owned by ImmuPharma and are the subject of current or
pending registrations; as of Effective Date, ImmuPharma is not aware of any
Third-Party rights in ImmuPharma’s current or pending Licensed Trademark
registrations relating to the Licensed Product or Licensed Molecules. As of
Effective Date, ImmuPharma has no knowledge of any prior use, infringement,
piracy or counterfeiting of the Licensed Trademark, any superior rights by any
Third Party in such Licensed Trademarks or any adverse claims pertaining to
such Licensed Trademarks;


 


(M)         Schedule
5 attached hereto is a listing of all material
agreements, including but not limited to agreements with CNRS entered into by
ImmuPharma related to the Licensed 


 


**   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

















 


Patents, the
Licensed Product, Licensed Molecules, the Licensed Technical Information or the
Licensed Trademarks (the “Third Party License Agreements”); accurate and
complete copies of such agreements have been delivered to Cephalon prior to the
Effective Date, and neither ImmuPharma, nor to the knowledge of ImmuPharma, any
other party to such agreements is in material breach of any such agreements
prior to the Effective Date;


 


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


 


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


 


(P)           ImmuPharma
has delivered to Cephalon a true and complete copy of the FDA IND file on
pre-clinical and clinical data and other information in ImmuPharma’s Control
which could reasonably be considered material for the safety or efficacy of the
Licensed Product or Licensed Molecules and to the best of ImmuPharma’s
knowledge such pre-clinical and clinical data and studies are in material
compliance with all rules, regulations and laws, except for those pre-clinical
studies that did not comply with GMP rules and regulations which
ImmuPharma has disclosed to Cephalon in writing;


 


(Q)          ImmuPharma
is not aware of any patent or patents affecting the validity of the Licensed
Patents or any novelty destroying prior art relating to the Licensed Patents;


 


(R)          ImmuPharma
has delivered to Anesta Amendment No. 1 to the CNRS/ImmuPharma License
Agreement, fully executed by both CNRS and ImmuPharma and a written
confirmation, duly executed by ImmuPharma and CNRS stating that ImmuPharma is
not in breach of any of the CNRS Agreements (the “CNRS Confirmation”);


 


(S)           ImmuPharma
is not in breach of the CNRS Agreements and no rights of ImmuPharma’s provided
for in the CNRS Agreements have been modified in any way to have adverse
effects on this Agreement or the License Agreements;


 


(T)          ImmuPharma
is not aware of any patents or patents applications other than the Licensed
Patents for which a claim of infringement could reasonably be asserted for the
development, manufacture, use, sale or commercialization of the Licensed
Molecules or Licensed Product; and


 


(U)          As
of the Effective Date, ImmuPharma has not viewed any unblinded efficacy data
from the Lupuzor Trial and has no information or knowledge from which
ImmuPharma can reasonably determine the outcome or result of the Lupuzor Trial.


 


9.2           If
ImmuPharma first becomes aware of any event which (i) either occurred
after the Effective Date hereof and is not within the control of ImmuPharma or (ii) was
only reasonably discovered by ImmuPharma
after the Effective Date to have occurred prior to the Effective Date and not
within the control of ImmuPharma relating to any of the representations and
warranties in Section 


 


**   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

















 


9.1 of this
Agreement after the Effective Date hereof and before the date of the Decision
Payment, then ImmuPharma shall promptly send Cephalon a written notice, in
accordance with Section 20 of this Agreement, describing such event
whereby it is agreed and understood, that such an event shall not be
characterised as breach for the purposes of Section 12 hereof.


 


10.           Cephalon Representations
and Warranties


 


10.1         Representation
and Warranties. 
Cephalon Inc. and Anesta jointly and severally warrant that, as of the
Effective Date and as of the date of the Decision Payment except as for those
events  which (i) either occurred
after the Effective Date and are not within the control of Cephalon or Anesta,
or (ii) were only reasonably discovered by Cephalon or Anesta after the
Effective Date to have occurred prior to the Effective Date and not within the
control of Cephalon or Anesta and (iii) disclosed properly to ImmuPharma
pursuant to Section 10.2:


 


(A)          Cephalon
and Anesta are validly existing under the laws of the United States of America
and Switzerland, respectively, with full power and authority to execute and
deliver this Agreement and perform their obligations hereunder;


 


(B)          each
of Cephalon and 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 each and both of Cephalon and Anesta and
represents legal, valid and binding obligations of each and both of Cephalon
and Anesta, enforceable in accordance with its terms;


 


(D)          Neither
Cephalon’s nor Anesta’s execution and performance of this Agreement 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 this
Agreement; except for (x) the expiration of the waiting period under the
Hart-Scott-Rodino Act, if applicable, or under any other mandatorily applicable
antitrust acts or regulations, or (y) any other applicable antitrust acts
or regulations to the extent such antitrust acts or regulations are mandatorily
applicable hereto or to any of the Signed Agreements anywhere in the Territory
, whereby it is agreed and understood, that any and all terms and conditions
hereof shall only be applicable hereto or to the Signed Agreements to the
extent they are permitted under any such mandatorily applicable antitrust acts
or regulations;


 


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


 


(F)           Neither
Cephalon nor Anesta have received written notice or does not have knowledge of
any fact which is likely to prevent either Cephalon or Anesta from performing
any obligation of either Cephalon or Anesta under this Agreement;


 


(G)          Neither
Cephalon nor Anesta have received any written notice from any Third Party which
alleges or threatens any challenge to the right of either Cephalon or Anesta to
develop, make, have made, import, use and sell the Licensed Product or Licensed
Molecules in the Territory under the Licensed Patents; 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.


 


14

















 


(H)          Each
and both of Cephalon and Anesta have the commercial, technical and financial
resources and expertise available, and intends to use them, to develop,
manufacture, import, use and sell Licensed Product or Licensed Molecules in the
Territory as contemplated by the Development and Commercialization Agreement.


 


10.2         If
Cephalon or Anesta first becomes aware of any event which (i) either
occurred after the Effective Date hereof and is not within the control of
Cephalon or Anesta or (ii) was only reasonably discovered
by Cephalon or Anesta after the Effective Date to have occurred prior to the Effective
Date and not within the control of Cephalon or Anesta  relating to any of the representations and
warranties in Section 10.1 of this Agreement after the Effective Date and
before the date of the Decision Payment, then Cephalon shall promptly send ImmuPharma
a written notice, in accordance with Section 20 of this Agreement,
describing such event  whereby it is
agreed and understood, that such event shall not be characterised as breach for
the purposes of Section 12 hereof.


 


11.           Remittance of Payments,
Taxes and Set-off


 


11.1         Payments.
The Know-How Access and Option Payment 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 to Cephalon or its Affiliates in writing.


 


11.2         Withholding
Taxes. All sums payable by either Party under this
Agreement shall be paid in full without any set off and without deduction or
withholding for any Taxes, duties, levies, fees or charges, 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 deduction or
withholding for any such Taxes, duties, levies, fees or charges, 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 all Commercially
Reasonable Efforts to make timely and procedurally correct application for
relief from withholding Tax in respect of any such payment under any applicable
law or regulations, including any doubly tax treaties applicable to the
Parties.  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.


 


12.           Breach; Remedies


 


In the event of a breach by a Party of its
covenants, agreements, representations or warranties hereunder, the
non-breaching party shall give written notice to such effect to the breaching
party(ies) (the “Breach Notice”) and, if such breach shall not have been
cured by the breaching party(ies) within thirty (30) calendar days from the
date of receipt of the Breach Notice, the non-breaching Parties shall have all
remedies at law or at equity, including but not limited to a full refund of the
Know-How Access and Option Payment and any other damages related to such
breach. The Parties agree that the Option and the License Agreements represent
unique property that cannot be readily obtained on the open market and that
Cephalon and its Affiliates would be irreparably injured if this Agreement and
the License Agreements are not specifically enforced after the breach or
default by ImmuPharma. Therefore, the Parties shall have the right to
specifically enforce the other Party’s performance of its obligations under
this Agreement and the License Agreements, 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 and the License Agreements without
being required to prove actual damages. As a condition to seeking specific
performance, 


 


**   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

















 


Cephalon shall not be required to have
tendered the Decision Payment, but shall be ready, willing and able to do so.


 


13.           Waiver


 


13.1         No
Waiver.  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.


 


13.2         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.


 


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


 


15.           Severability


 


In the event that any
section or clause or any part of any section or 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
sections or clauses or parts of sections or 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.


 


16.           Assignment


 


This Agreement, and any of
the rights and obligations created herein, are not assignable or transferable
by either Party without the prior written consent of the other Party, such
consent not to be unreasonably withheld or delayed, provided that
Cephalon may only assign this Agreement, without the prior written consent of
ImmuPharma, to any Affiliate upon prior written notice to ImmuPharma.  Any permitted assignee or successor described
in this Section 16 shall succeed to all of the rights and obligations of
the assigning Party under this Agreement, provided that Cephalon, together with
the affiliated assignee, shall remain jointly and severally liable for all
obligations hereunder and under the License Agreement.


 


17.           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 term, 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.


 


**   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

















 


18.           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.


 


19.           Costs of Preparation


 


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


 


20.           Notices


 


Any notice or other document
to be given under this Agreement shall be given by sending the same by
registered mail or overnight delivery service 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.  All notices and communications relating to
this Agreement shall be deemed to have been given when received.


 


ImmuPharma’s Address:


 


ImmuPharma
(France) S.A. and ImmuPharma AG


c/o
ImmuPharma plc


50 Broadway


Westminster


London SW1H 0BL


United Kingdom


Fax no:  +44 20 7152 4001


For the attention of the
Chief Executive Officer


 


With copy to:


 


ImmuPharma France SA


Technopôle


40 rue Marc Seguin


F-68100 Mulhouse


France


For the attention of the Chairman


 


And with further copy to


 


Dr. Thomas M. Rinderknecht


RKS Rinderknecht & Burger


Grafenauweg 6


CH-6300 Zug


Switzerland


Fax:  + 41
41 726 60 66


(legal 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.


 


17

















 


Cephalon’s Address:


 


Anesta AG


Baarerstrasse 23


CH- 6300 Zug


Switzerland


Fax: +41 41 729 80 66


 


and


 


Cephalon, Inc


41 Moores Road


Frazer, PA 19355


USA


Fax no:  +1 610 727 7652


For the attention of the
Vice President and Deputy General Counsel


 


And with further copy to


 


Ballard Spahr Andrews & Ingersoll, LLP


1735 Market Street


51st Floor


Philadelphia, Pennsylvania 19103


U.S.A.


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.


 


21.           Force Majeure


 


21.1         Neither
ImmuPharma nor Cephalon (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.


 


21.2         The Party
affected by an event referred to in Section 21.1 shall forthwith notify
the other Party of the nature and effect of such event and both Parties shall
where the same is practicable use all Commercially Reasonable Efforts to
minimise such effect and to comply with the respective obligations herein contained
as nearly as may be in their original form.


 


22.           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.


 


**   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

















 


23.           Benefit to Third Parties


 


23.1         No
party who is not a party to this Agreement shall have any rights to enforce any
term of this Agreement.


 


24.           Governing Law


 


This Agreement shall be
governed by and construed and interpreted in accordance with Swiss law, without
reference to the principles of conflict 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.


 


25.           Dispute Resolution and
Arbitration


 


25.1         The
Dispute Resolution. The Parties will cooperate
in good faith and use Commercially Reasonable Efforts to informally resolve any
disputes under this Agreement.  If the
Parties are not able to informally resolve a dispute under this Agreement
within thirty (30) calendar days after such dispute arises, the following
procedures shall be used:


 


(A)          one
Party will serve upon the other Party a “Notice of Dispute” that summarizes the
nature of the dispute and the efforts taken to resolve that dispute to date;


 


(B)          within
ten (10) Business Days of the receipt of the Notice of Dispute, the
Parties will conduct a meeting (which may take place by teleconference) of
senior executive-level representatives of each Party, which representatives
will use Commercially Reasonable Efforts to resolve the dispute; and


 


(C)           if, following the
senior executive-level meeting described in Section 25.1(B), the dispute
remains unresolved, then the Parties may institute claims, suits or any other
actions under the laws of Switzerland under the arbitration procedures
described hereinafter.


 


25.2         Arbitration.
Subject to Section 25.1, any dispute concerning this Agreement shall 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.


 


25.3         Injunctive Relief. Notwithstanding anything in this Agreement, the Development or
Commercialization Agreement or the Trademark License 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.


 


25.4         License
Agreements. Section 25.1  shall not apply in relation to any dispute concerning this
Agreement that arises after the License Agreements have become effective.


 


**   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

















 


[THE BALANCE OF
THIS PAGE HAS BEEN LEFT BLANK ON PURPOSE]


 


**   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

















 


AS
WITNESS, the Parties hereof have executed this Agreement to
be effective as of the Effective Date.


 


 


	
  IMMUPHARMA (FRANCE) S.A.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Robert Zimmer

  	
   

  
	
  Name: Robert Zimmer

  	
   

  
	
  Title: Chairman of the Board

  	
   

  
	
   

  	
   

  
	
  In the presence of:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  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:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CEPHALON, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ J. Kevin Buchi

  	
   

  
	
  Name: J. Kevin Buchi

  	
   

  
	
  Title: Executive Vice President & Chief
  Financial Officer

  	
   

  
	
   

  	
   

  
	
  In the presence of:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  With respect to Section 3.3:

  	
   

  
	
   

  	
   

  
	
  ESCROW AGENT

  	
   

  
	
   

  	
   

  
	
  /s/ Jürg Burger

  	
   

  
	
  Name: Jürg Burger

  	
   

  
	
  Title: Partner/Attorney-at-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.