Exhibit 10.26


 


Term Sheet


 


This is a term sheet (the “Term Sheet”), which sets
forth the basic principles of a Settlement and License Agreement (the “Agreement”)
between Cephalon, Inc., CIMA Labs., Inc., and Anesta Corp., each on
behalf of itself and its Affiliates (collectively “Cephalon”) and Barr
Pharmaceuticals, LLC as successor in interest to Barr Pharmaceuticals, Inc.,
and Barr Laboratories, Inc., each
on behalf of itself and its Affiliates (collectively “Barr”) arising
from the pending litigation in the United States District Court for the
District of Delaware, Civil Action Nos. 08-cv-00455 (SLR) and 08-cv-00810 (SLR)
and 09-cv-00074 (SLR) regarding United States Patents Nos. 6,200,604 and
6,974,590 (the “Orange Book Patents”) with respect to Barr’s ANDA No. 90-438  (“Barr ANDA”) for generic versions of
Cephalon’s FENTORA® (the “Barr Products”) and Civil Action Nos. 09-cv-00794 (UNA)
regarding United States Patent No. 6,264,981 (the “‘981 Patent”) (the ‘981
Patent and the Orange Book Patents will be collectively referred to as “the
Patents in Suit”). The foregoing
litigation matters shall be collectively referred to as the “Litigation.”
For purposes of this Term Sheet,
Cephalon and Barr are sometimes referred to herein as the “Parties.”  It is contemplated that the Parties will work
together expeditiously and in good faith to negotiate and execute a formal Agreement
reflecting the points of this Term Sheet.


 


1.               License.  Cephalon, on behalf of itself and its Affiliates,
would grant Barr and its Affiliates a non-exclusive license (without the right
to grant sublicenses) under [**] (“Cephalon Patents”) to make, have made, use,
import, market, offer for sale, and sell in or for the United States and its
territories and possessions, including Puerto Rico (the “Territory”), the Barr
Products under the Barr ANDA (the “License”) as of the License Effective Date
(as defined below).


 


a.               License Effective Date.  Subject to Section 1(e) below and
to the covenants of the Parties set forth in Sections 4(e)- 4(h) below, the
License would become effective on the “License Effective Date,” which would be
the earliest of:


 


	
   

  	
  i.

  	
  October 27, 2018;

  
	
   

  	
   

  	
   

  
	
   

  	
  ii.

  	
  The date of a final court decision that is no longer subject to
  appeal (other than by a petition for writ of certiorari) holding that all of
  the then asserted and adjudicated claims of the Patents in Suit are
  unenforceable, invalid and/or (subject to Section 4(g) below) not
  infringed;

  
	
   

  	
   

  	
   

  
	
   

  	
  iii.

  	
  The date on which a third party, under license from Cephalon,
  launches a generic product pursuant to an ANDA which refers to FENTORA® as
  the reference listed drug provided that [**], Cephalon notifies Barr of the
  date on which the third party is permitted to launch said generic product.
  [**]; and

  
	
   

  	
   

  	
   

  
	
   

  	
  iv.

  	
  The
  date on which Cephalon, its Affiliates, or any third party launches an
  authorized generic to FENTORA® under the FENTORA® NDA

  



 






	
  **

  	
  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.

  



 


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(“authorized generic”) provided
that [**], Cephalon notifies Barr of the date on which the third party is
permitted to launch said authorized generic product. For the avoidance of
doubt, the launch of Barr AG Products under Section 1(b) does not
amount to a launch by Cephalon, its Affiliates or a third party for purposes of
this Section 1(a)(iv).


 


b.              At Risk Launch.  Subject to Section 4(g) below, [**]
after a third party launches an unauthorized generic to FENTORA® (“At Risk
Launch”) Cephalon and its Affiliates would grant to Barr and its Affiliates a
non-exclusive, temporary and contingent license to the Cephalon Patents to
make, have made, use, import, market, sell or offer to sell in the Territory generic
FENTORA® product (“At Risk License”). 
During the At Risk License period, Barr would have the option to sell
either Barr Products under a contingent At-Risk launch license (“ANDA
Contingent At-Risk Launch License”) or an authorized (Cephalon to Barr) generic
(“Barr AG Products”) under a contingent At-Risk launch license (“AG Contingent
At Risk Launch License”).  [**], Barr
would inform Cephalon whether it intends to exercise its option for the AG
Contingent At Risk Launch License.  For
the avoidance of doubt, subject to applicable further limitations under Section 4(g) below,
any temporary license under this Section would be available only in the
event of and during the period of third party At-Risk Launch generic sales.


 


i.             Events Ending Contingent
At-Risk Launch License.  Any
At Risk Launch License shall end if, and only if:


 


1.               a United States District
Court of competent jurisdiction grants Cephalon’s request for a temporary
restraining order (“TRO”), preliminary or permanent injunction or other
injunctive relief prohibiting or otherwise enjoining further sales of the At
Risk Launch generic;


 


2.               an appellate mandate (or a
District Court Order on remand) issues thereafter reversing a denial of TRO, preliminary or permanent
injunction or other injunctive relief, thereby prohibiting further sales of the
At Risk Launch generic;


 


3.               such party undertaking an At-Risk
Launch exits the market by settlement agreement or otherwise; or


 


4.               the License Effective Date
designated in Section 1(a)(i)-(iv) arises.


 


ii.          Effect of the
End of Contingent At-Risk Launch License.


 


Upon the occurrence of any of the events in Section 1(b)(i),
the ANDA Contingent At-Risk Launch License or an AG Contingent At-Risk Launch
License ends.  If the At Risk License
ends pursuant to Section 1(b)(i)(1)-(3) (or, additionally, with
respect to an AG Contingent At-Risk Launch License, if the license ends
pursuant to Section 1(b)(4)), Barr would agree to immediately stop making,
having made, using, importing, promoting, 


 






	
  **

  	
  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.

  



 


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marketing, offering to sell, and selling  the Barr Products, or
as applicable, Barr AG Products, until the License Effective Date designated in
Section 1(a) occurs, or another At Risk Launch occurs again triggering
this Section 1(b).  For the sake of
clarity, upon the occurrence of any triggering event under Section 1(b)(i),
the At-Risk Launch license ends, and as applicable, Cephalon would have no
obligation to provide Barr with any further Barr AG Products and Barr would
immediately return all Barr AG Products then in inventory to Cephalon.


 


iii.            ANDA Contingent At-Risk Launch License
Royalty.


 


Upon the occurrence of an
At-Risk Launch under Section 1(b), for all Barr Products sold pursuant to
the ANDA Contingent At Risk Launch License prior to the License Effective Date,
Barr would agree to pay as a royalty to Cephalon an amount equal to [**].  The ANDA Contingent At Risk Launch License
and associated royalty obligation would cease as of the earlier of: A) the
occurrence of applicable events in Section 1(b)(i) above; or B) the License
Effective Date.


 


In addition to the
royalty rate set forth in the first sentence of this Section 1(b)(iii), if
any of the events in Section 1(b)(i)(1)-(3) occur prior to the
License Effective Date, for all Barr Products sold pursuant to the ANDA
Contingent At Risk Launch License, Barr would agree to pay to Cephalon an
additional royalty amount equal to [**]. 
For clarity, the maximum total royalty Barr would pay with respect to
any sales of Barr Products pursuant to the ANDA Contingent At Risk Launch
License would be [**].  The ANDA
Contingent At Risk Launch License and associated royalty obligation would cease
as of the earlier of: A) the occurrence of applicable events in Section 1(b)(i) above;
or B) the License Effective Date.


 


iv.           AG Contingent At-Risk Launch License
Royalty.


 


Upon the occurrence of an
At-Risk Launch under Section 1(b), for all Barr AG Products sold by Barr
or its Affiliates pursuant to the AG Contingent At Risk Launch License prior to
the License Effective Date, Barr would agree to pay Cephalon an amount equal to
[**].  The AG Contingent At Risk Launch
License and associated royalty obligation would cease as of the earlier of: A)
the occurrence of applicable events in Section 1(b)(i) above; or B)
the License Effective Date.


 


c.               In the event that Cephalon
enters into a royalty-bearing license with any third party to sell a generic
product pursuant to an ANDA which refers to FENTORA® as the reference listed
drug or any third party launches an authorized generic to FENTORA® under the
FENTORA® NDA  (“authorized generic”) such
that Barr 


 






	
  **

  	
  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.

  



 


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is entitled to the License
Effective Date as provided in Section 1(a)(iii) or (iv), Barr would
agree to pay a royalty on sales of the Barr Products, occurring between the
License Effective Date of Section 1(a)(iii) or (iv) and October 27,
2018, in an amount equal to [**].  For
clarity, (1) the royalty rates from Section 1(b) are not in any
manner subject to this Section 1(c), and (2) if Cephalon does not
enter into a royalty-bearing license with a third party under this Section 1(c),
then, any and all activities performed by Barr under the License granted in Section 1(a) would
be royalty-free.


 


d.              For purposes of this Section 1,
“Gross Profits” shall mean Net Sales as defined in Section 1(d)(ii) below
less Manufacturing Costs as defined in Section 1(d)(i) below.


 


i.      “Manufacturing Costs” for
each unit of Barr generic FENTORA® product shall mean [**].


 


ii.   “Net Sales” shall mean, with
respect to the Barr Products or Barr AG Products, [**]:


 


1.               [**];


 


2.               [**];


 


3.               [**];


 


4.               [**];


 


5.               [**]; and


 


6.               [**].


 


iii.            In the Agreement, the
Parties will provide for a “true up” reconciliation and independent auditing
process of royalty payments. In addition, given the Parties’ recent addition of
separate formal definitions for authorized generic products and Barr AG
Products, the Parties will adjust applicable language in the Agreement in good
faith as necessary to harmonize such definitions to give effect to the intent
of Section 1(b) above with respect to any Barr AG Products that may
be sold by Barr under an applicable AG Contingent At-Risk Launch License as
contemplated in that Section.


 


e.               In granting the License to
Barr, Cephalon would not make and Barr would not rely upon any representation
that, as of the License Effective Date, Barr will be able to launch the Barr
Products.  For the sake of clarity, to
the extent that (1) one or more third parties is a first applicant who is
entitled to a 180-day exclusivity period pursuant to 21 U.S.C. §
355(j)(5)(B)(iv), (2) there has not been a forfeiture of all such first
filer’s exclusivity periods pursuant to 21 U.S.C. § 355(j)(5)(D), and (3) therefore
Barr fails or is unable to obtain final FDA approval of Barr Products by the
License Effective Date, Barr would agree that it will be unable to sell Barr
Products until Barr receives final FDA approval of Barr Products.  The Parties understand that a first-filer’s
exclusivity period would be triggered when 


 






	
  **

  	
  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.

  



 


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the first-filer launches
either its ANDA generic product or an authorized generic product.


 


f.                 Except as permitted by a
Contingent At Risk License under Section 1(b) above or under the
Additional Limited License in Section 2 below, Barr and its Affiliates would
agree not to (i) make, use, offer to sell, or sell in the Territory, (ii) actively
induce or assist any other entity to make, use, import, offer to sell or sell
in the Territory, or (iii) import or cause to be imported in the Territory,
the Barr Products or Barr AG Products or any other generic version of FENTORA®
prior to the License Effective Date.


 


2.               Additional Limited License.  In addition to the License granted in Section 1,
Cephalon would grant Barr a limited license to make, have made, engage in
Pre-Launch Offers for Sale and import the Barr Products under the Barr ANDA
prior to the License Effective Date solely for the purpose of conducting
preparations for a launch of such Barr Products in the Territory on the License
Effective Date. For the sake of clarity, “Pre-Launch Offers For Sale” would include
(1) discussions with potential customers to make them aware of the
upcoming availability of the Barr Products from Barr, and (2) engaging
customers in non-binding pricing/contracting activities.  For clarity, Pre-Launch Offers For Sale would
not include entering into binding contracts with customers for the sale of Barr
Products in the Territory before the License Effective Date, or selling,
shipping, delivering or distributing Barr Product to customers before the
License Effective Date.


 


3.               Waiver of Regulatory
Exclusivities.  Cephalon
would agree to waive, with respect to the Barr Products, any and all regulatory
exclusivities granted to Cephalon that may prevent approval or marketing of the
Barr Products in the Territory under the Barr ANDA as of the License Effective
Date. In addition, to the extent necessary to give effect to the provisions of Section 2
above, Cephalon would, as applicable, grant Barr an appropriate limited license
to the foregoing regulatory exclusivities to permit Barr to conduct-pre-launch
activities as contemplated therein.


 


4.               Covenants.


 


a.               Cephalon would provide Barr and its Affiliates with a
covenant not to sue with respect to Cephalon Patents related only to the Barr
Products and such covenant would be effective on the License Effective
Date.  This covenant not to sue would
survive termination or expiration of this Term Sheet and/or any resulting
Agreement.


 


b.              Cephalon would covenant not to delete, remove or
cancel NDA No. 21-947 or delete, remove, cancel or obsolete any National
Drug Code(s) or any other relevant code(s) for Approved FENTORA® Products
from the applicable National Drug File or from any other pricing database until
the earlier of the date Barr or its Affiliates cease selling Barr Products or [**];


 






	
  **

  	
  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.

  



 


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c.               Cephalon would covenant not to take any action to
prevent the launch, manufacture, use, sale, offer for sale, importation or
distribution of Barr Products at such time as permitted by this Term Sheet
and/or any resulting Agreement;


 


d.              Cephalon would covenant to, upon Barr’s
request, provide the FDA with written confirmation of the License Effective
Date and the licenses, covenants and waivers herein provided;


 


e.               Cephalon would covenant that, in the
event Watson obtains a final, non-appealable judgment of invalidity, unenforceability
and/or non-infringement, Barr may then immediately enter the market royalty
free, following any applicable exclusivity periods accorded by statute;


 


f.                 Barr and its Affiliates would covenant
not to challenge the validity or enforceability of any claim of the Patents in
Suit in any context or forum in the Territory, including but not limited to any
court or USPTO proceeding (including reexamination proceedings), including, but
not limited to, initiating a declaratory judgment action with respect to any of
the Patents in Suit.  Notwithstanding the
foregoing, (1) if Cephalon, its Affiliates or any third party with rights
to enforce the Patents in Suit brings an action against Barr for infringement
of any of the Patents in Suit, Barr would be able to assert any defense or
counterclaim (including, without limitation, invalidity or unenforceability) with
respect to said patent only, and (2) with respect to products other than
the Barr Products, Barr and its Affiliates would be permitted to file for the
Patents in Suit a “Paragraph IV Certification” under 21 U.S.C.
§355(j)(2)(A)(vii)(IV) (as amended or replaced) challenging the validity or
enforceability of or asserting that such products do not infringe any claim of
the Patents in Suit;


 


g.              Barr and its Affiliates would each
represent, warrant, covenant and agree that in the event that Cephalon prevails
against Watson and that decision is no longer subject to appeal, then (1) the
provisions of Section 1(b) would be null and void, and (2) Section 1(a)(ii) would
be limited such that the License Effective Date would only include the date of
a final court decision of invalidity or unenforceability and not a final court decision
of non-infringement; and


 


h.              Barr would stipulate that the Barr
Products infringe the Patents in Suit and that the Patents in Suit are valid
and enforceable.  Notwithstanding the
foregoing, no admission made in this Section 4(h) (including those
admissions regarding validity and enforceability) shall apply outside the
United States or to any product other than FENTORA® or the Barr Products.


 


5.               No Litigation Assistance.  Barr would agree not to assist, coordinate
with, or otherwise help any third party in prosecuting, defending or settling
litigation regarding the 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.

  



 


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in Suit in any context or
forum in the Territory, including but not limited to any court or USPTO
proceeding (including reexamination proceedings), except as required by law.


 


6.               Regulatory Review of
Agreements.  The Parties
would agree to submit the Agreement, and as applicable, this Term Sheet, to the
U.S. Federal Trade Commission (“FTC”) and the U.S. Department of Justice (“DOJ”)
as required by statute. To the extent Barr may have additional obligations to
file the Agreement or Term Sheet with the offices of the States’ Attorneys
General (“SAGs”), Barr represents that it will timely do so.  The Parties would agree that if after
submitting the Agreement, the FTC or DOJ or SAGs raise objections as to any of
the provisions of the Agreement, the Parties would attempt in good faith to
modify the Agreement to overcome any such objections.


 


7.               Mutual Releases.


 


a.               Cephalon, on behalf of itself and each of
its predecessors, successors, assigns, officers, directors, employees, trustees  and Affiliates (as defined below) (collectively, “Cephalon
Releasors”) would irrevocably, fully, finally and forever release, relinquish,
acquit and discharge Barr and each of its predecessors, successors, assigns,
officers, directors, employees, trustees, and Affiliates (collectively, “Barr
Releasees”), of and from and against, and covenant not to sue, not to assign to
any other entity a right to sue and not to authorize any other entity to sue
any Barr Releasee for, any and all claims, counter-claims, actions, causes of
action, suits, defenses, judgments, debts, offsets, accounts, covenants, obligations,
duties, contracts, agreements, torts, damages and any and all demands and
liabilities of every kind and nature whatsoever, including losses, costs,
expenses, and attorneys’ fees (collectively, “Losses”) of every kind and
nature, both at law and in equity, known or unknown, suspected or unsuspected, forseen
or unforeseen, accrued or unaccrued, that existed as of the date of this Release
which arise out of, relate to or concern, and which could have been, are or
were asserted against the Barr Releasees in the Litigation.  Notwithstanding this Release, nothing herein
shall preclude any Cephalon Releasor from asserting the validity,
enforceability, and/or infringement of the Patents in Suit in any future
litigation concerning a product other than the Barr Products, as contemplated
in Sections 4(a) and 4(f) above, and such claim or argument is hereby
reserved.  This Release would not prevent
or impair the right of Cephalon to bring a proceeding in court or any other
forum for a breach of this Term Sheet and/or any resulting Agreement or any
representation, warranty or covenant herein.


 


b.              Barr, on behalf of itself and each of its
predecessors, successors, assigns, officers, directors, employees, trustees,
and Affiliates (collectively, “Barr Releasors”) would irrevocably, fully,
finally and forever release, relinquish, acquit and discharge Cephalon and each
of its predecessors, successors, assigns, officers, directors, employees,
trustees, parents, subsidiaries and Affiliates (collectively, “Cephalon Releasees”)
of and from and against, and covenant not to sue, not to assign to any other
entity a right to sue and not to authorize any other entity to sue any Cephalon
Releasee for, any and all Losses (as defined above) of every kind 


 






	
  **

  	
  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.

  



 


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and nature, both
at law and in equity, known or unknown, suspected or unsuspected, forseen or
unforeseen, accrued or unaccrued, that existed as of the date of this Release which
arise out of, relate to or concern and, which could have been, are or were
asserted against the Cephalon Releasees in the Litigation.  Notwithstanding this Release, nothing herein
shall preclude any Barr Releasor from challenging the validity, enforceability,
and/or infringement of the Patents in Suit under the circumstances specified in
Section 4(f), and such claim or argument is hereby reserved. This Release
shall not prevent or impair the right of Barr to bring a proceeding in court or
any other forum for a breach of this Term Sheet and/or the Agreement or any
representation, warranty or covenant herein.


 


c.               The Parties agree that within five (5) days
of the effective date of the Agreement, they shall jointly
file an order of dismissal with prejudice, in a mutually acceptable form, with
the Court.  The Releases set forth in
Sections 7(a) and 7(b) would be effective as of the effective date of
such dismissal.


 


d.              “Affiliate” shall mean any entity which
controls, is controlled by, or is under common control with the applicable
entity.  For purposes of this definition,
“control” shall mean:  (a) in the
case of corporate entities, direct or indirect ownership of at least fifty
percent (50%) of the stock or shares entitled to vote for the election of
directors or otherwise having the power to control or direct the affairs of
such entity; and (b) in the case of non-corporate entities, direct or
indirect ownership of at least 50% of the equity interest or the power to
direct the management and policies of such non-corporate entities. For the
avoidance of doubt, Barr represents that TEVA Pharmaceutical Industries Ltd.
(an Israeli corporation) and TEVA Pharmaceuticals U.S.A., Inc. (a Delaware
corporation) and any such entities’ respective Affiliates are also Affiliates
for purposes of this Agreement.


 


8.               Representations and
Warranties.  Each Party
would represent and warrant to each of the other Parties, as of the date of the
execution of this Term Sheet and the date of execution of the Agreement, that:


 


a.               Such Party is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has full corporate power and authority to enter into this
Term Sheet and the Agreement and to carry out the provisions hereof;


 


b.              Such Party has taken all corporate action
necessary to authorize the execution and delivery of the Agreement and the
performance of its obligations under the Term Sheet and the Agreement, and there
are no other persons or entities whose consent to this Agreement or whose
joinder herein is necessary to make fully effective the provisions of this Term
Sheet and the 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.

  



 


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c.               Neither this Term Sheet nor the Agreement
does or will interfere with any other agreement to which Such Party has entered
into, and that Such Party will not enter into any agreement the execution
and/or performance of which would violate or interfere with this Term Sheet
and/or the Agreement;


 


d.              This Term Sheet has been duly executed by
such Party and constitutes a valid and legally binding obligation of such
Party, enforceable in accordance with its terms;


 


e.               Such Party represents and warrants that
it has been advised by its counsel of its rights and obligations under the Term
Sheet and enters into the Term Sheet freely, voluntarily, and without duress, that
it understands and agrees that this Term Sheet and any resulting Agreement
shall therefore be deemed to have been negotiated and prepared at the joint
request, direction and instruction of each of the Parties, at arm’s length,
with the advice and participation of counsel, and will be interpreted in
accordance with its terms without favor to either Party; and


 


f.                 Such Party represents and warrants that
it is not relying on any promises, inducements, or representations other than
those provided herein.


 


9.               Miscellaneous.


 


a.               The Parties would agree that the licenses
to the Patents in Suit, individually and/or collectively, serve as valid
consideration sufficient to support this Term Sheet and/or any resulting
Agreement.


 


b.              The Parties would agree to dismiss the
pending litigation with prejudice, with each side to bear its own costs and
attorneys’ fees.


 


c.               Except as the Parties shall agree is
necessary to give effect to Section 9(e) below and as contemplated by
the usual exceptions to confidential treatment (including requirements of law,
including statutes relating to SEC and FTC disclosure and/or review), the Parties
would agree that the terms of this Term Sheet and any resulting Agreement are
to be treated as confidential information.


 


d.              The Parties would agree that if one or
more provisions of this Term Sheet or any resulting Agreement is ruled wholly
or partly invalid or unenforceable by a court or other governmental body of
competent jurisdiction, then the validity or enforceability of all other
provisions of this Term Sheet and/or such Agreement shall not in any way be
affected or impaired, to the extent reasonably severable.


 


e.               The Parties would agree to seek the guidance
of Magistrate Thynge regarding the possibility of obtaining Court approval of
the terms of this Term Sheet and/or any resulting 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.

  



 


9

















 


f.                 Subject to Cephalon’s right in any
proceeding to assert this Term Sheet and/or any resulting Agreement in defense
of any of its rights under Section 4(f) — (h) above, this Term
Sheet and any resulting Agreement would not be admissible or otherwise relied
upon or disclosed (unless such disclosure is required by law) in connection
with any proceeding concerning any or all of the Patents in Suit and a product
that was not the subject of the Litigation, or with any other proceeding except
as part of a proceeding to enforce the terms of this Term Sheet and/or any
resulting Agreement.


 


g.              This Term Sheet and any
resulting Agreement shall be interpreted in accordance with and governed by the
laws of the State of Delaware without regard to conflict of laws principles.  The United States District Court for the District
of Delaware shall be the proper and exclusive forum for any action to enforce
this Term Sheet and/or any resulting Agreement. Each Party consents to personal
jurisdiction of the Court for such purposes.


 


h.              Notice would be provided in
writing and sent by prepaid registered or certified air mail or by overnight
express mail (e.g., FedEx), or by telefacsimile confirmed by prepaid registered
or certified air mail letter or by overnight express mail (e.g., FedEx)
(failure of such confirmation shall not affect the validity of such notice by
telefacsimile to the extent the receipt of such notice is confirmed by the act
of the receiving Party (e.g., a telefacsimile of the receiving Party submitting
its receipt of such notice)), and would be deemed to have been properly served
to the addressee upon receipt of such written communication at the specified
addresses.


 


i.                  Nothing in this Term Sheet
and/or any resulting Agreement shall be construed as or deemed to be an
admission by the Parties hereto, or any of them, of any unlawful, improper, or
actionable conduct or omission by any of them, and each Party  expressly denies liability of any kind
whatsoever.


 


j.                  The terms of this Term Sheet
and any resulting Agreement shall be binding upon and inure to the benefit of
the parties hereto, their respective predecessors, successors, Affiliates and
assigns. However, no Party shall assign any of its rights or obligations
hereunder without the prior written consent of the other Party hereto, which
consent may not be unreasonably withheld.


 


k.               The executed Term Sheet would
supersede all previous writings and understandings, including unexecuted drafts
of this Term Sheet.


 






	
  **

  	
  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.

  



 


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  CEPHALON, INC.

  	
   

  	
  BARR PHARMACEUTICALS, LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Steven Reed

  	
   

  	
  By:

  	
  /s/ Frederick J. Killion

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Steven Reed

  	
   

  	
  Name:

  	
  Frederick J. Killion

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  VP Litigation

  	
   

  	
  Title:

  	
  EVP & General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  CIMA LABS, INC.

  	
   

  	
  By:

  	
  /s/ Lauren T. Rabinovic

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Ross Oehler

  	
   

  	
  Name:

  	
  Lauren T. Rabinovic

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Ross Oehler

  	
   

  	
  Title:

  	
  Counsel

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ANESTA CORP.

  	
   

  	
  BARR LABORATORIES, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Ross Oehler

  	
   

  	
  By:

  	
  /s/ Frederick J. Killion

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Ross Oehler

  	
   

  	
  Name:

  	
  Frederick J. Killion

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
  Title:

  	
  EVP & General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Lauren T. Rabinovic

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Lauren T. Rabinovic

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  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.

  



 


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