exv10w2






Exhibit 10.2




Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY



ASSET PURCHASE AGREEMENT



by and between



DUSA PHARMACEUTICALS, INC., SELLER,



and



ACELLA PHARMACEUTICALS, LLC, PURCHASER



Dated as of June 30, 2011













 





Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY



TABLE OF CONTENTS




	 	 	 	 	 

	 	 	Page
	Section 1 DEFINITIONS
	 	 	1	 
	 
	1.1 Definitions
	 	 	1	 
	1.2 Other Definitional Provisions
	 	 	5	 
	 
	 	 	 	 
	Section 2 PURCHASE AND SALE
	 	 	5	 
	 
	 	 	 	 
	2.1 Transfer of Purchased Assets
	 	 	5	 
	2.2 Consideration
	 	 	5	 
	2.3 Risk of Loss and Insurance
	 	 	5	 
	2.4 Closing
	 	 	6	 
	2.5 Transactions at Closing
	 	 	6	 
	 
	 	 	 	 
	Section 3 REPRESENTATIONS AND WARRANTIES OF SELLER
	 	 	7	 
	 
	 	 	 	 
	3.1 Organization
	 	 	7	 
	3.2 Due Authorization
	 	 	7	 
	3.3 Title
	 	 	7	 
	3.4 Intellectual Property
	 	 	7	 
	3.5 Litigation
	 	 	7	 
	3.6 Brokers, Etc.
	 	 	8	 
	3.7 Disclaimer
	 	 	8	 
	 
	 	 	 	 
	Section 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER
	 	 	9	 
	 
	 	 	 	 
	4.1 Organization
	 	 	9	 
	4.2 Due Authorization
	 	 	9	 
	4.3 No Conflicts; Enforceability
	 	 	9	 
	4.4 Litigation
	 	 	10	 
	4.5 Consents
	 	 	10	 
	4.6 Regulatory Disclosure
	 	 	10	 
	4.7 Brokers, Etc.
	 	 	10	 
	4.8 Independent Investigation
	 	 	10	 
	 
	 	 	 	 
	Section 5 CONDITIONS PRECEDENT TO CLOSING
	 	 	11	 
	 
	 	 	 	 
	5.1 Conditions Precedent to Obligations of the Parties
	 	 	11	 
	5.2 Conditions Precedent to Purchaser’s Obligation
	 	 	11	 
	5.3 Conditions Precedent to Seller’s Obligations
	 	 	11	 






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portions have been omitted and filed separately with the Securities and Exchange Commission.




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	 	 	Page
	Section 6 COVENANTS
	 	 	12	 
	 
	 	 	 	 
	6.1 Confidentiality; Publicity
	 	 	12	 
	6.2 Use of Trade or Service Marks
	 	 	13	 
	6.3 Product Returns
	 	 	13	 
	6.4 Regulatory Matters
	 	 	14	 
	6.5 Bulk Sales Matters
	 	 	14	 
	 
	 	 	 	 
	Section 7 SURVIVAL AND INDEMNIFICATION
	 	 	14	 
	 
	 	 	 	 
	7.1 Survival of Representation
	 	 	14	 
	7.2 Indemnification by Seller
	 	 	14	 
	7.3 Indemnification by Purchaser
	 	 	15	 
	7.4 Procedures
	 	 	15	 
	7.5 Limitation on Liability
	 	 	16	 
	 
	 	 	 	 
	Section 8 MISCELLANEOUS
	 	 	17	 
	 
	 	 	 	 
	8.1 Assignment; Binding Effect
	 	 	17	 
	8.2 Expenses
	 	 	17	 
	8.3 Notices
	 	 	17	 
	8.4 Governing Law; Jurisdiction
	 	 	18	 
	8.5 Waiver of Jury Trial
	 	 	18	 
	8.6 Amendments; Entire Agreement
	 	 	19	 
	8.7 Waiver
	 	 	19	 
	8.8 Severability
	 	 	19	 
	8.9 Schedules; Exhibits
	 	 	19	 
	8.10 Construction
	 	 	19	 
	8.11 Headings
	 	 	19	 
	8.12 Counterparts
	 	 	19	 






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confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




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LIST OF EXHIBITS




	 	 	 	 	 

	Exhibit A

	 	-
	 	Assignment of Domain Names
	Exhibit B

	 	-
	 	Assignment of Patent
	Exhibit C

	 	-
	 	Assignment of Trademarks
	Exhibit D

	 	-
	 	Bill of Sale and Assignment Agreement
	 
	LIST OF SCHEDULES

	 
	Schedule 1.1(a)

	 	-
	 	Product Domain Names
	Schedule 1.1(b)

	 	-
	 	Trademarks
	Schedule 1.1(c)

	 	-
	 	Patent
	Schedule 2

	 	-
	 	Product Information
	Schedule 3.4

	 	-
	 	Intellectual Property Disclosure











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confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY






ASSET PURCHASE AGREEMENT




     THIS ASSET PURCHASE AGREEMENT (this “Agreement”),
dated as of June 30, 2011 (“Effective Date”) is entered into by and among DUSA Pharmaceuticals, Inc., a
New Jersey corporation (“Seller”) and Acella Pharmaceuticals, LLC (“Purchaser”). Each of Seller
and Purchaser are at times referred to each as a “Party” and, collectively, as the “Parties.”



PRELIMINARY STATEMENTS




     A. Seller owns all rights, title, claim and interest to the Purchased Assets (defined below);



     B. Seller has determined that the sale of the Purchased Assets, on the terms and conditions
set forth herein, is consistent with and in furtherance of the business strategies of Seller;



     C. Purchaser has determined that the purchase of the Purchased Assets, on the terms and
conditions set forth herein, is consistent with and in furtherance of the business strategies of
Purchaser; and



     D. Seller desires to sell the Purchased Assets and Purchaser desires to purchase the Purchases
Assets from Seller, on the terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of the foregoing and the representations, warranties,
covenants, agreements and provisions set forth in this Agreement, and in the Other Agreements, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and received, and intending to be legally bound hereby, the Parties agree as follows:



SECTION 1

DEFINITIONS




     1.1 Definitions. All capitalized terms used in this Agreement shall have the meanings specified
in this Section 1.1 or elsewhere in this Agreement, as applicable. The following terms shall have
the meanings set forth below for the purposes of this Agreement:



     “Act” means the United States Federal Food, Drug, and Cosmetic Act, as amended, and
regulations promulgated thereunder.



     “Action” means any claim, action, suit, arbitration, inquiry, audit, proceeding or
investigation by or before any Governmental Authority.



     “Affiliate” means, with respect to any Person, any other Person that directly or indirectly
controls or is controlled by, or is under direct or indirect common control with, such Person. For
purposes of this definition, a Person shall be deemed, in any event, to control another Person if
it owns or controls, directly or indirectly, at least [c.i.] of the voting equity of the other
Person or



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confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




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has the power to direct or cause to the direction of the management of the other Person,
whether through ownership of voting securities or otherwise.




     “Agreement” has the meaning set forth in the introductory paragraph of this Agreement.



     “Assignment of Domain Names” means the Assignment of Domain Names agreement executed by Seller
and the Purchaser in substantially the form of Exhibit A.



     “Assignment of Patent” means the Assignment of Patent agreement executed by Seller and the
Purchaser in substantially the form of Exhibit B.



     “Assignment of Trademarks” means the Assignment of Trademarks agreement executed by Seller and
the Purchaser with respect to the Trademarks, in substantially the form of Exhibit C.



     “Bill of Sale” means the Bill of Sale and Assignment Agreement executed by Seller and the
Purchaser in substantially the form of Exhibit D.



     “Business Day” means any day other than a Saturday, a Sunday or any day on which banks are
authorized or required to be closed in the United States.



     “Closing” means the closing of the purchase and sale of the Purchased Assets contemplated by
this Agreement.



     “Closing Date” has the meaning set forth in Section 2.4.



     “Confidential Information” means (i) any and all business, technical and non-technical
information of Seller including without limitation, Seller’s respective information concerning
research, development, design details and specifications, engineering, technology, software
programs (including source code), formulae, invention, techniques, processes, technical
information, financial information, procurement requirements, purchasing, manufacturing, price
lists, key personnel, suppliers (including agreements with suppliers), customers, prospective
customers, policies or operational methods, plans for future developments, business forecasts,
sales and merchandising, and marketing plans and information, in whatever form disclosed; and (ii)
the terms and conditions of this Agreement, the Other Agreements and any other agreements entered
into or proposals exchanged by the Parties, except such disclosures as may be required under
Section 6.1.3. Confidential Information will not include information which: (w) is available
publicly or known to Purchaser prior to the disclosure hereunder as established by competent
documentary evidence; (x) becomes known to the public other than by the act or omission of
Purchaser; (y) is disclosed to Purchaser by a third party having no obligation of confidentiality,
direct or indirect, to Seller; or (z) corresponds to that furnished by Seller to any third party on
a non-confidential basis.



     “Control” or “Controlled by” means, with respect to intellectual property, the ability of a
Party (collectively with its Affiliate(s)), whether by ownership, license or otherwise, to grant a
license or sublicense.



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confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




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     “DSHEA” means the Dietary Supplement Health and Education Act of 1994 (21 U.S.C. 341 et seq.),
as amended.



     “Effective Date” has the meaning set forth in the introductory paragraph of this Agreement.



     “FDA” means the United States Food and Drug Administration, or any successor agency thereto.



     “Governmental Authority” means any nation or government, any state, regional, local or other
political subdivision thereof, and any entity, department, commission, bureau, agency, authority,
board, court, official or officer, domestic or foreign, exercising executive, judicial, regulatory
or administrative functions of or pertaining to government.



     “Indemnified Party” has the meaning set forth in Section 7.4.



     “Indemnifying Party” has the meaning set forth in Section 7.4.



     “Knowledge” means with respect to the subject matter of, and the Transactions, Purchased
Assets, and Other Agreements contemplated by, this Agreement the actual knowledge of Seller’s Chief
Executive Officer, Chief Financial Officer, Executive Vice President of Sales and Marketing and the
Vice President of Intellectual Property and Regulatory Affairs.



     “Law” means each provision of any currently existing federal, provincial, state, local law,
statute, ordinance, order, code, rule or regulation, promulgated or issued by any Governmental
Authority, as well as any judgments, decrees, injunctions or agreements issued or entered into by
any Governmental Authority specifically with respect to Seller or the Products, or Purchaser or any
products sold by Purchaser, under any of the Purchased Assets.



     “Liability” means, collectively, any indebtedness, guaranty, endorsement, claim, loss, damage,
deficiency, cost, expense, obligation or responsibility, fixed or unfixed, known or unknown, choate
or inchoate, liquidated or unliquidated, secured or unsecured, direct or indirect, matured or
unmatured, or absolute, contingent or otherwise, including any product liability.



     “Losses” means, with respect to any claim or matter, all losses, expenses, obligations and
other Liabilities or other damages (whether absolute, accrued, contingent, fixed or otherwise, or
whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees,
penalties, interest obligations, deficiencies, losses and expenses (including amounts paid in
settlement, interest, court costs, costs of investigators, fees and expenses of attorneys,
accountants, financial advisors and other experts, and other expenses of litigation).



     “Other Agreements” means, collectively, the Assignment of Domain Names, Assignment of Patent,
the Assignment of Trademarks, the Bill of Sale and other instruments or agreements necessary to
document the rights and obligations of the Parties.



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confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




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     “Party” or “Parties” has the meaning set forth in the introductory paragraph of this
Agreement.



     “Patent” means U.S. Patent No. 6,979,468 entitled “Oral Composition and Method for the
Treatment of Inflammatory Cutaneous Disorders” as identified on Schedule 1.1(c).



     “Person” means any individual (including, without limitation, financial advisors, brokers or
finders), corporation, partnership, joint venture, limited liability company, trust or
unincorporated organization or Governmental Authority.



     “Product Domain Names” means those domain names and web addresses Controlled by Seller and
that are used exclusively for the Products and are set forth on Schedule 1.1(a).



     “Product Information” has the meaning set forth in Schedule 2.



     “Products” means any products of Seller manufactured, sold, distributed or otherwise
introduced into the stream of commerce by or on behalf of Seller under the trademarks
Nicomide® and/or Nicomide-T® and/or referencing or in fact existing under the claims of
U.S. Patent No. 6,979,468 entitled “Oral Composition and Method for the Treatment of Inflammatory
Cutaneous Disorders”.



     “Purchase Price” has the meaning set forth in Section 2.2.



     “Purchaser” has the meaning set forth in the introductory paragraph of this Agreement.



     “Purchased Assets” means collectively, the Product Domain Names, Trademarks, and the Patent.



     “Representatives” means, with respect to any Person, directors, officers, managers, employees,
independent contractors, agents, attorneys, accountants or consultants of such Person.



     “SEC” means the United States Securities and Exchange Commission.



     “Seller” has the meaning set forth in the introductory paragraph of this Agreement.



     “Seller Proprietary Information” has the meaning set forth in Section 6.1.1.



     “Territory” means the United States of America and its territories.



     “Third Party(ies)” means any Person other than the Parties or their respective Affiliates.



     “Third Party Claim” has the meaning set forth in Section 7.4.



     “Trademarks” means the trademarks listed on Schedule 1.1(b) and all goodwill associated
therewith.



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confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




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     “Transactions” means the transactions, collectively and singularly, contemplated by and
reasonably necessary to accomplish this Agreement and the Other Agreements.



     1.2 Other Definitional Provisions.




     1.2.1 When a reference is made in this Agreement to a Section, Exhibit or Schedule,
such reference is to a Section of, or an Exhibit or Schedule to, this Agreement unless
otherwise indicated.




     1.2.2 The terms defined in the singular have a comparable meaning when used in the
plural, and vice versa.




     1.2.3 Words of one gender include the other gender.




     1.2.4 References to a Person are also to its successors and permitted assigns.




     1.2.5 The word “including” means “including without limitation” and the words
“include” and “includes” have corresponding meanings.



SECTION 2

PURCHASE AND SALE




     2.1 Transfer of Purchased Assets. On the terms and subject to the conditions contained in this
Agreement and in consideration of the terms set forth herein, Seller sells, conveys, transfers,
assigns and delivers to the Purchaser, and Purchaser purchases, takes delivery of and acquires from
Seller, all of Seller’s right, title, claim and interest in and to the Purchased Assets. Seller
also delivers to Purchaser, and Purchaser accepts, a copy of the Product Information.



     2.2 Consideration. In consideration for the assignment and transfer of the Purchased Assets as
provided in this Section 2, Purchaser shall pay a non-refundable, non-contingent, non-creditable
payment of Seven Hundred and Fifty Thousand No/100ths Dollars ($750,000.00) to Seller upon the
execution of this Agreement by both Parties (the “Purchase Price”). Such payment shall be made in
U.S. Dollars, via wire transfer of immediately available funds on the Closing Date. Such payment
shall be without deduction of exchange, collection, transfer or other charges and shall be made
free and clear of any taxes, duties, levies, or fees.



     2.3 Risk of Loss and Insurance.




     2.3.1 Until the Closing Date, any loss of or damage to the Purchased Assets shall be
the sole responsibility of Seller. As of the Closing Date, title to the Purchased
Assets shall be transferred to the Purchaser. As of the Closing Date, Purchaser
shall bear all risk of loss associated with the Purchased Assets.




     2.3.2 Purchaser hereby represents to Seller that, as of and after the Closing Date,
it has purchased and shall continue to maintain [c.i.] appropriate to cover [c.i.]



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confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




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under
this Agreement, including without limitation [c.i.] and [c.i.] which shall [c.i.]. Upon
Seller’s request, Purchaser shall furnish to Seller a [c.i.], and stating that such [c.i.]
shall not be [c.i.] without at least [c.i.] prior written notice to Seller for a minimum
period of at least [c.i.] years after Purchaser’s last sale of any Product.



     2.4 Closing. Upon the terms and subject to the conditions of this Agreement, the Closing shall be
held on the Effective Date (sometimes herein the “Closing Date”), provided that the conditions set
forth in Section 5 have been satisfied or waived. The Closing shall take place at the offices of
Reed Smith LLP at 136 Main Street, Suite 250, Princeton, New Jersey 08543 at 10:00 a.m. (EST),
unless the Parties otherwise agree. The Parties will exchange (or cause to be exchanged) at the
Closing the agreements, instruments, certificates and other documents, and do, or cause to be done,
all of the things respectively required of each Party as specified in Section 2.5.



     2.5 Transactions at Closing. At the Closing, subject to the terms and conditions of this
Agreement:




     2.5.1 Seller’s Actions and Deliveries. Seller shall deliver or cause to be delivered
to the Purchaser:




          (a) executed counterparts of this Agreement and each of the Other Agreements to which
Seller or an Affiliate of Seller is a party; and




          (b) such other documents, including the Product Information, and instruments as may be
reasonably necessary to effect or evidence the Transactions.




     2.5.2 Purchaser’s Actions and Deliveries. Purchaser shall deliver or cause to be
delivered to Seller:




          (a) executed counterparts of this Agreement and each of the Other Agreements to which
Purchaser or an Affiliate of Purchaser is a party; and




          (b) such other documents and instruments as may be reasonably necessary to effect or
evidence the Transactions




          (c) and the Purchase Price required to be paid to Seller in full under the requirements
of Section 2.2.




     2.5.3 Following the Closing, none of the Purchased Assets shall comprise or be
considered “Seller’s Proprietary Information” and Purchaser shall be free to use,
promote, advertise, disseminate, market and sell the same, without restriction and in
any manner it may deem fit, necessary and/or proper, from time to time and at any time,
without the consent, permission or authorization of Seller.



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confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY



SECTION 3

REPRESENTATIONS AND WARRANTIES OF SELLER




     Seller hereby covenants, represents and warrants to the Purchaser as follows:



     3.1 Organization. DUSA Pharmaceuticals, Inc. is a corporation duly organized, validly existing
and in good standing under the laws of the State of New Jersey, and has all requisite corporate
power and authority to execute, deliver, and perform its obligations under this Agreement and any
of the Other Agreements to which it is a Party.



     3.2 Due Authorization. Seller has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement and the Other Agreements, and the execution and
delivery of this Agreement and the Other Agreements and the performance of all of its obligations
under this Agreement and the Other Agreements have been duly authorized by Seller. This Agreement
constitutes the legal, valid and binding obligations of Seller, enforceable against Seller in
accordance with its respective terms.



     3.3 Title. Seller owns all right, title, claim and interest in and to the Purchased Assets, and
has right to use and to convey the Purchased Assets to Purchaser free and clear of all
encumbrances, liabilities and obligations.



     3.4 Intellectual Property.




     3.4.1 Except as set forth on Schedule 3.4, none of the Trademarks have been or are
the subject of or subject to (A) any encumbrance, claim, liability or obligation, (B) any
pending adverse judgment, injunction, order, decree or agreement restricting (x) its use
in connection with the Products within the Territory or (y) assignment or license thereof
by Seller, or (C) to Seller’s Knowledge, any threatened litigation or claim of
infringement or invalidity threatened or made in writing or any pending litigation to
which Seller is a party.




     3.4.2 Except as set forth on Schedule 3.4, or as otherwise expressly contemplated by
this Agreement, (i) neither Seller nor any of its Affiliates has granted any licenses to
the Purchased Assets to Third Parties within the Territory; (ii) neither Seller nor any of
its Affiliates, nor to Seller’s Knowledge, any other Person, is party to any agreements
with Third Parties that materially limit or restrict use of the Purchased Assets within
the Territory or require any payments for their use; and (iii) no other Person has any
joint ownership or royalty interest in the Purchased Assets within the Territory.



     3.5 Litigation. As of the Closing Date, there is no Action pending or, to Seller’s Knowledge,
threatened, that would either directly or indirectly: compromise or impair Purchaser’s rights,
title, claims and interests in and to the Purchased Assets; prohibit, hinder, delay or otherwise
impair Seller’s ability to timely perform its obligations under this Agreement or under the Other
Agreements; affect the legality, validity or enforceability of this Agreement or the Other
Agreements; or that would prevent or delay the consummation of the Transactions.



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     3.6 Brokers, Etc. No broker, investment banker, agent, finder or other intermediary acting on
behalf of Seller or under the authority of Seller, is or will be entitled to any broker’s or
finder’s fee or any other commission or similar fee directly or indirectly in connection with any
of the Transactions.



     3.7 Disclaimer.




     3.7.1 (a) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER SELLER NOR
ITS REPRESENTATIVES MAKES OR HAS MADE ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, AT LAW OR IN EQUITY, IN RESPECT OF THE PURCHASED ASSETS OR THE
PRODUCTS INCLUDING ANY IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO (I)
MERCHANTABILITY, NON-INFRINGEMENT, VALIDITY, ENFORCEABILITY, SUITABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, (II) THE OPERATION OF A BUSINESS WITH THE PRODUCTS OR ANY OTHER PRODUCTS
TO BE SOLD BY PURCHASER UNDER ANY OF THE PURCHASED ASSETS BY PURCHASER, AFTER THE CLOSING IN
ANY MANNER OR (III) THE PROBABLE SUCCESS OR PROFITABILITY OF THE PRODUCTS OR ANY OTHER
PRODUCTS SOLD BY PURCHASER UNDER ANY OF THE PURCHASED ASSETS, AFTER THE CLOSING;




     (b) NEITHER SELLER NOR ANY OF ITS REPRESENTATIVES WILL HAVE OR SHALL BE SUBJECT TO ANY
LIABILITY OR INDEMNIFICATION OBLIGATION TO PURCHASER OR TO ANY OTHER PERSON RESULTING FROM
(I) THE DISTRIBUTION BY PURCHASER, ITS AFFILIATES, OR REPRESENTATIVES OF, OR USE OF, ANY
INFORMATION RELATING TO THE PRODUCTS, AND (II) ANY INFORMATION, DOCUMENTS OR MATERIAL MADE
AVAILABLE TO PURCHASER ORALLY OR IN WRITING, WHETHER AS RESPONSES TO QUESTIONS SUBMITTED ON
BEHALF OF PURCHASER OR IN ANY OTHER FORM IN EXPECTATION OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT. ANY SUCH OTHER REPRESENTATION OR WARRANTY IS HEREBY EXPRESSLY DISCLAIMED;
AND




     (c) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER’S INTERESTS IN THE PURCHASED
ASSETS ARE BEING
TRANSFERRED, RESPECTIVELY, THROUGH THE SALE OF THE PURCHASED ASSETS “AS IS, WHERE IS,
WITH ALL FAULTS,” AND SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY
KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE PURCHASED
ASSETS AND THE PROSPECTS (WHETHER FINANCIAL OR OTHERWISE), RISKS AND OTHER INCIDENTS OF THE
PURCHASED ASSETS.



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portions have been omitted and filed separately with the Securities and Exchange Commission.




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SECTION 4

REPRESENTATIONS AND WARRANTIES OF PURCHASER




     Purchaser covenants, represents and warrants to Seller as follows:



     4.1 Organization. Purchaser is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Delaware. Purchaser has all requisite corporate
power and authority to execute, deliver, and perform its obligations under this Agreement and any
of the Other Agreements to which it is a Party.



     4.2 Due Authorization. Purchaser has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and the Other Agreements, and the
execution and delivery of this Agreement and the Other Agreements and the performance of all of its
obligations under this Agreement and the Other Agreement have been duly authorized by the
Purchaser.



     4.3 No Conflicts; Enforceability.




          4.3.1 (a) Solely and exclusively as is relevant to Purchaser’s ability and right to
consummate the Transactions, the execution, delivery and performance of this Agreement and
the Other Agreements by Purchaser: (1) are not prohibited or limited by, and shall not
result in the breach of or a default under, any provision of the certificate of
registration, operating agreement, other agreement, bylaws or articles of Purchaser; and (2)
does not conflict with, result in a breach of, constitute (with or without due notice or
lapse of time or both) a default under, result in the acceleration of obligations under,
create in any party the right to terminate, modify or cancel, or require any notice, consent
or waiver under, any material agreement or instrument binding on Purchaser, or any
applicable order, writ, injunction or decree of any court or Governmental Authority to which
Purchaser is a party or by which Purchaser is bound or to which any of its assets are
subject.




                (b) This Agreement has been duly executed and delivered by Purchaser, and constitutes
the legal, valid and binding obligations of Purchaser, enforceable against Purchaser in
accordance with its respective terms, except as enforceability may be limited or affected by
applicable bankruptcy, insolvency, moratorium, reorganization or other laws of general
application relating to or affecting creditors’ rights generally.




          4.3.2 Purchaser is not, and will not be, required to give any notice to or obtain any
consent from any Person in connection with the execution, delivery or performance of this
Agreement.




          4.3.3 The [c.i.] that Seller has shared with Purchaser regarding [c.i.] fairly
represents the substance of [c.i.] between the [c.i.] regarding [c.i.], which status has
not materially changed as of the Closing Date.



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     4.4 Litigation. As of the Closing Date, there is no Action pending or, to Purchaser’s knowledge,
threatened, directly or indirectly involving Purchaser that would prohibit, hinder, delay or
otherwise impair Purchaser’s ability to perform its obligations under this Agreement or under the
Other Agreements, or that would affect the legality, validity or enforceability of this Agreement
or the Other Agreements, or prevent or delay the consummation of the Transactions.



     4.5 Consents. No notice to, filing with, authorization of, exemption by, or consent of, any
Person, including any Governmental Authority, is required for Purchaser to consummate the
Transactions.



     4.6 Regulatory Disclosure. Purchaser [c.i.] that Seller [c.i.], the FDA considered
Nicomide®, when sold by Seller, to be a marketed unapproved drug and that, in response
to discussions with the FDA, including discussions about continuing use of the Nicomide®
trademark with respect to products regulated under DSHEA, Seller stopped the sale and
distribution of Nicomide® as a prescription product in June 2008. Accordingly, [c.i.]
the possibility of [c.i.] regarding the Products and Purchased Assets, as disclosed, and Purchaser
hereby [c.i.] which relates to the [c.i.] as brought by [c.i.] with respect to the[c.i.] following
the Closing Date as more fully addressed in this Section 4.6.



     4.7 Brokers, Etc. No broker, investment banker, agent, finder or other intermediary acting on
behalf of Purchaser or under the authority of Purchaser is or will be entitled to any broker’s or
finder’s fee or any other commission or similar fee directly or indirectly in connection with any
of the Transactions.



     4.8 Independent Investigation.




          4.8.1 In making the decision to enter into this Agreement and the Other Agreements and
to consummate the Transactions, Purchaser has had the opportunity to conduct its own
independent investigation, review and analysis of the Purchased Assets. Purchaser
acknowledges that it and its Representatives have been provided adequate access to the
personnel, properties, premises and records of the Seller for such purpose. Accordingly, in
entering into this Agreement and the Other Agreements, Purchaser acknowledges that Purchaser
and its Affiliates have relied solely upon the aforementioned investigation, review and
analysis, and not on any factual representations or opinions of Seller or its
Representatives.




          4.8.2 Purchaser hereby acknowledges and agrees that: (1) other than the covenants,
representations and warranties made in this Agreement, neither Seller nor its Affiliates,
nor any of their respective Representatives make or have made any representation or
warranty, express or implied, at law or in equity, with respect to the Purchased Assets,
including as to (i) merchantability, non-infringement, validity, enforceability, suitability
or fitness for any particular use or purpose, (ii) the operation of any business by
Purchaser after the Closing in any manner, (iii) [c.i.] with respect to any of the Purchased
Assets, or (iv) the probable success or profitability of the Products or any other products
sold by Purchaser under any of the Purchased Assets, after the



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Closing; and (2) neither
Seller nor its Affiliates nor any of their respective Representatives will have or be
subject to any Liability or indemnification obligation to Purchaser or to any other Person
resulting from the distribution to Purchaser, their Affiliates or Representatives of, or
Purchaser’s use of, any information relating to the Products, including any information,
documents or material made available to them, whether orally or in writing, responses to
questions submitted on behalf of Purchaser or in any other form in expectation of the
Transactions other than the covenants, representations and warranties made in this
Agreement, and the Schedules and Exhibits included therein.



SECTION 5

CONDITIONS PRECEDENT TO CLOSING




     5.1 Conditions Precedent to Obligations of the Parties.The respective obligations of the Parties
to consummate the Transactions on the Closing Date are subject to the satisfaction or waiver (in
accordance with Section 8.7) at or prior to the Closing Date of the following conditions:




          5.1.1 Litigation. No preliminary or permanent injunction or other order has been
issued by any court or by any Governmental Authority, body or authority which enjoins,
restrains, or prohibits pursuant to applicable Law the Transactions on the Closing Date.




          5.1.2 Purchaser. Purchaser shall have received the written consent to the Transactions
as necessary under the requirements of the operating agreement for Acella Pharmaceuticals
LLC, as may be required.



     5.2 Conditions Precedent to Purchaser’s Obligation. Purchaser’s obligations to consummate the
Transactions shall be subject to the fulfillment of each of the following additional conditions,
any one or more of which may be waived, at the Purchaser’s sole discretion, in writing:




          5.2.1 Representations and Warranties. Each of the representations and warranties of
Seller contained in Section 3 shall be true and correct in all material respects as of the
Closing Date.




          5.2.2 Performance. Seller shall have performed and complied in all material respects
with each of the covenants, agreements and obligations Seller is required to perform under
this Agreement and the Other Agreements on or before the Closing.




          5.2.3 Agreements. Seller shall have duly executed and delivered this Agreement and the
Other Agreements.



     5.3 Conditions Precedent to Seller’s Obligations. Seller’s obligation to consummate the
Transactions shall be subject to the fulfillment of each of the following additional conditions,
any one or more of which may be waived, at Seller’s sole discretion, in writing by Seller:



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          5.3.1 Representations and Warranties. Each of the representations and warranties of
Purchaser, contained in Section 4 shall be true and correct in all material respects as of
the Closing Date.




          5.3.2 Performance. Purchaser shall have performed and complied in all material
respects with each of the covenants, agreements and obligations Purchaser is required to
perform under this Agreement on or before the Closing.




          5.3.3 Agreements. Purchaser shall have duly executed and delivered this Agreement and
the Other Agreements to Seller.




          5.3.4 Consideration. Seller shall have received the Purchase Price due by Purchaser in
accordance with the requirements of Section 2.2.



SECTION 6

COVENANTS




     6.1 Confidentiality; Publicity.




          6.1.1 All Confidential Information (a) obtained by Purchaser (or its Affiliates or
Representatives) from Seller (or its Affiliates or Representatives) (the “Seller Proprietary
Information”) or (b) obtained by Purchaser (or its Affiliates or Representatives) from the
Seller Proprietary Information, shall be used by Purchaser solely as required to perform its
obligations, exercise or enforce its rights under this Agreement (or the Other Agreements),
to enforce its interests and rights in and to the Purchased Assets and to fully utilize and
exploit the same in any manner Purchaser may deem fit within the absolute, exclusive and
uncontrolled exercise of its discretion, or comply with applicable Law, and for no other
purpose. Purchaser shall not disclose, or permit the disclosure of, any of the Seller
Proprietary Information to any Person except those Persons to whom such disclosure is
necessary to permit Purchaser to perform its obligations, exercise or enforce its rights
under this Agreement (or the Other Agreements), or comply with applicable Law. Purchaser
shall treat, and shall cause its Affiliates and the Representatives to treat, the Seller
Proprietary Information as confidential, using the same degree of care as Purchaser normally
employs to safeguard
its own confidential information from unauthorized use or disclosure, but in no event
less than a reasonable degree of care.




          6.1.2 Purchaser acknowledges and agrees, that Seller (and its Affiliates) may retain
one (1) or more copies of all or part of the documentation (including written or electronic
records, files, manuals, filings, etc.), that it delivers to Purchaser as part of the
Purchased Assets, in accordance with the provisions of and solely for the purposes set forth
in this Section 6.




          6.1.3 In the event Purchaser is requested pursuant to, or required by, applicable Law
to disclose any of Seller’s Confidential Information, Purchaser will provide reasonable
notice to Seller in a timely manner so that Seller may seek a



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protective order or other
appropriate remedy or, in Seller’s sole discretion, waive compliance with the
confidentiality provisions of this Agreement. The Parties shall co-operate in all
reasonable respects, in connection with any reasonable actions to be taken for the foregoing
purpose. In any event, Purchaser as requested or required to disclose such Confidential
Information may furnish it as requested or required pursuant to applicable Law (subject to
any such protective order or other appropriate remedy) without liability under this
Agreement, provided that such Purchaser furnishes only that portion of such Confidential
Information which Purchaser is advised by its counsel is required, and Purchaser exercises
reasonable efforts to obtain reliable assurances that confidential treatment shall be
accorded such Confidential Information.




          6.1.4 The Parties shall consult with each other upon the content of any press release
in connection with the Transactions. Notwithstanding any contrary term contained in this
Agreement, (i) any disclosure that is required by Law as advised by the disclosing Party’s
counsel may be made without the prior consent of the other Party and (ii) any Party may
issue a press release or public announcement if the contents of such press release or public
announcement have previously been made public other than through a breach of this Agreement
by the issuing Party, without the prior consent of the other Party. To the extent
practicable, the disclosing Party shall give at least two (2) Business Days advance notice
of any such legally required disclosure to the other Party, and such other Party may provide
any comments on the proposed disclosure during such period and if not practicable, such
lesser practicable period, if any. Notwithstanding any contrary term contained in this
Agreement, to the extent that either Party determines that it or the other Party is required
to file this Agreement, a summary thereof or a notification thereof to comply with the
requirements of an applicable stock exchange or any Governmental Authority, including
without limitation the SEC, such Party shall give at least two (2) Business Days advance
written notice of any such required disclosure to the other Party. Prior to making any such
filing or notification, the Parties shall consult with respect thereto regarding
confidentiality. The Parties shall cooperate, each at its own expense, in such filing or
notification, including without limitation such confidential treatment request, and shall
execute all documents reasonably required in connection therewith.



     6.2 Use of Trade or Service Marks. Other than as expressly provided in this Agreement and the
Other Agreements, Purchaser shall not use or permit any of its Affiliates or distributors to use
any of the Seller’s corporate, trademarks or service marks or names now or hereafter owned or used
by Seller, other than the Purchased Assets (on the terms provided in this Agreement and in the
Other Agreements).



     6.3 Product Returns. Purchaser shall be responsible and liable for all returns of any products
manufactured or sold by or on behalf of Purchaser from and after the Closing Date. Seller shall be
responsible and liable for all returns of any Products manufactured or sold by or on behalf of
Seller prior to the Closing Date.




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     6.4 Regulatory Matters.




     6.4.1 From and after the Closing Date, Purchaser, at its cost, shall be solely
responsible and liable for: (i) taking all actions, paying all fees and conducting all
communication with the appropriate Governmental Authority required by Law in respect of
products sold by Purchaser under any of the Purchased Assets, including preparing and filing
all reports with the appropriate Governmental Authority; (ii) taking all actions and
conducting all communication with Third Parties with respect to any products sold by
Purchaser under the Purchased Assets, including responding to all complaints in respect
thereof, including complaints related to tampering or contamination; and (iii) investigating
all complaints with respect to any products sold by Purchaser under the Purchased Assets.




     6.4.2 From and after the Closing Date, Purchaser, at its cost, shall be solely
responsible and liable for conducting all voluntary and involuntary recalls of any products
sold by Purchaser under the Purchased Assets, including recalls required by any Governmental
Authority. To the extent relevant and applicable, Seller is responsible for all voluntary
and involuntary recalls of Product sold by Seller prior to Closing.



     6.5 Bulk Sales Matters. Seller hereby waives compliance with any “bulk sales” Laws applicable to
the sale to Purchaser of the Purchased Assets by Seller.



SECTION 7

SURVIVAL AND INDEMNIFICATION




     7.1 Survival of Representation. The representations and warranties contained in this Agreement
shall survive the Closing and remain in full force and effect until the [c.i.]; provided, however,
that if notice of any claim for [c.i.] shall have been given prior to the [c.i.], the relevant
representations and warranties shall survive for purposes of such claim until such time [c.i.].



     7.2 Indemnification by Seller. Seller shall indemnify Purchaser and its Affiliates and their
respective, Representatives against, and hold them harmless from, any Losses, to the extent arising
from:




     7.2.1 any breach of any representation or warranty of Seller contained in this
Agreement;




     7.2.2 any breach of any covenant of Seller contained in this Agreement;




     7.2.3 any fees, expenses or other payments incurred or owed by Seller to any Persons
retained or employed by it in connection with the Transactions;




     7.2.4 any manufacture, sale, use, distribution or ingestion of any Product, or
otherwise arising from the Purchased Assets, before the Closing Date; and




     7.2.5 the use or misuse of any of the Purchased Assets before the Closing Date.



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     7.3 Indemnification by Purchaser. Purchaser shall indemnify Seller and its Affiliates and their
respective Representatives against, and agrees to hold them harmless from, any Losses, to the
extent arising from:




     7.3.1 any breach of any representation or warranty of Purchaser contained in this
Agreement;




     7.3.2 any breach of any covenant of Purchaser contained in this Agreement;




     7.3.3 any fees, expenses or other payments incurred or owed by Purchaser to any Persons
retained or employed by it in connection with the Transactions;




     7.3.4 the manufacture, sale, purchase, use, or ingestion by any Third Party of any
product sold by or on behalf of the Purchaser under any of the Purchased Assets after the
Closing Date.




     7.3.5 the use or misuse of any of the Purchased Assets after the Closing Date.



     7.4 Procedures. In order for a Party (the “Indemnified Party”) to be entitled to any
indemnification provided for under this Agreement in respect of, arising out of or involving a
claim made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified
Party must notify the indemnifying party (the “Indemnifying Party”) in writing (and in reasonable
detail) of the Third Party Claim within [c.i.] after receipt by such Indemnified Party of notice of
the Third Party Claim; provided, however, that failure to give such notification shall not affect
the indemnification provided under this Agreement except to the extent the Indemnifying Party shall
have been [c.i.] as a result of such failure. Thereafter, the Indemnified Party shall deliver to
the Indemnifying Party, within [c.i.] after the Indemnified Party’s receipt thereof, copies of all
notices and documents (including court papers) received by the Indemnified Party relating to the
Third Party Claim.




     7.4.1 If a Third Party Claim is made against an Indemnified Party, the Indemnifying
Party shall be entitled to participate in the defense thereof and, if it so chooses, to
assume the defense thereof with counsel selected by the Indemnifying Party and satisfactory
to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified
Party shall have the right to participate in the defense thereof and to employ counsel,
[c.i.], separate from the counsel employed by the Indemnifying Party, it being understood
that the Indemnifying Party shall control such defense. The Indemnifying Party shall be
liable for the [c.i.] employed by the Indemnified Party for any period during which the
Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party chooses
to defend or prosecute a Third Party Claim, all
Indemnified Parties shall cooperate in the defense or prosecution thereof. Such
cooperation shall include the retention and (upon the Indemnifying Party’s request) the
provision to the Indemnifying Party of records and information that are reasonably relevant
to such Third Party
Claim, and making Representatives available on a mutually convenient
basis to provide additional information and explanation of any material provided under this
Agreement or other matters reasonably related to such Third Party



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Claim. Whether or not the
Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall
not admit any liability with respect to, or settle, compromise or discharge, such Third
Party Claim without the Indemnifying Party’s prior written consent (which consent shall not
be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third Party
Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a
Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates
the Indemnifying Party to pay the full amount of the Losses in connection with such Third
Party Claim, which releases the Indemnified Party completely in connection with such Third
Party Claim and that would not otherwise materially adversely affect the Indemnified Party.
Notwithstanding the foregoing, the Indemnified Party shall not unreasonably withhold its
consent to a settlement that the Indemnifying Party may recommend provided the Indemnifying
Party assumes the defense of a Third Party Claim.




     7.4.2 In the event any Indemnified Party should have a claim against any Indemnifying
Party under Section 7.2 or 7.3 that does not involve a Third Party Claim being asserted
against or sought to be collected from such Indemnified Party, the Indemnified Party shall
deliver notice of such claim with reasonable promptness to the Indemnifying Party, but in
any event not later than [c.i.] after the Indemnified Party determines that it has or is
reasonably likely to have a claim to indemnification under this Agreement, stating the
amount of Loss, if known, and method of computation thereof, and containing a specific
reference to the provisions of this Agreement in respect of which such right of
indemnification is claimed or arises. The failure by any Indemnified Party so to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any indemnification
obligation that it may have to such Indemnified Party under Section 7.2 or 7.3, as
applicable, except to the extent that the Indemnifying Party is a[c.i.] by such failure. If
the Indemnifying Party disputes that it has an indemnification obligation with respect to
such claim, the Indemnifying Party shall deliver notice of such dispute with reasonable
promptness and the Indemnifying Party and the Indemnified Party shall proceed in good faith
to negotiate a resolution of such dispute for a period of [c.i.] following the receipt by
the Indemnified Party of such dispute notice. If the Indemnified Party and the Indemnifying
Party have not resolved such dispute during such time period through good faith
negotiations, such dispute shall be resolved by litigation in an appropriate court of
competent jurisdiction or other mutually agreeable non-judicial dispute resolution
mechanism.



     7.5 Limitation on Liability. EXCEPT WITH RESPECT TO THIRD PARTY CLAIMS, THE INDEMNIFICATION
OBLIGATIONS OF THE PARTIES SHALL NOT EXTEND TO INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES, INCLUDING BUSINESS INTERRUPTION, LOST PROFITS, LOSS OF USE, DAMAGE TO GOODWILL OR LOSS OF
PRODUCTS, EXCEPT TO THE EXTENT THAT THE INDEMNIFIED PARTY CAN PROVE FRAUD.



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SECTION 8

MISCELLANEOUS




     8.1 Assignment; Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns.



     8.2 Expenses. Except as otherwise specified in this Agreement, and regardless of whether or not
the Transactions are consummated, each Party shall bear its own expenses with respect to the
Transactions.



     8.3 Notices. All notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given (a) when received, if delivered
personally, (b) when transmitted, if telecopied (which is confirmed), (c) upon receipt, if sent by
registered or certified mail (postage prepaid, return receipt requested) and (d) the day after it
is sent, if sent for next-day delivery to a domestic address by overnight mail or courier, to the
Parties at the following addresses:




If to Seller, to:




DUSA Pharmaceuticals, Inc.

25 Upton Drive

Wilmington, MA 01887

Telephone: (978) 657-7500

Facsimile: (978) 657-9193

Attn: Robert F. Doman

Title: President and Chief Executive Officer




With copies sent concurrently to:




Reed Smith LLP

Princeton Forrestal Village

136 Main Street

Princeton, NJ 08540

Telephone: (609) 514-8542

Facsimile: (609) 951-0824

Attention: Nanette W. Mantell, Esq.




If to Purchaser, to:




Acella Pharmaceuticals, LLC

9005 Westside Parkway

Alpharetta, Georgia 30009

Telephone: (678) 325-3189

Facsimile: (678) 746-0717

Attention: [c.i.]



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with copies sent concurrently to:




Miller & Martin, PLLC

Suite 800

1170 Peachtree Street, N.E.

Atlanta, Georgia 30309-7706

Telephone: (404) 962-6456

Facsimile: (404) 962-6356

Attention: Christopher E. Parker, Esq.


provided, however, that if any Party shall have designated a different address by notice to the
others, then to the last address so designated.




     8.4 Governing Law; Jurisdiction. This Agreement (including any claim or controversy arising out
of or relating to this Agreement) shall be governed by the laws of the State of New York without
regard to conflict of law principles that would result in the application of any Law other than the
laws of the State of New York. All Actions arising out of or relating to this Agreement shall be
heard and determined exclusively in the federal district or state courts of the State of New York,
and any appellate court from any thereof, in any Action arising out of or relating to this
Agreement and the Other Agreements, the Transactions or for recognition or enforcement of any
judgment relating thereto, and each of the Parties hereby irrevocably and unconditionally: (a)
agrees not to commence any such Action except in such courts; (b) agrees that any claim in respect
of any such Action may be heard and determined in the such courts of the State of New York; (c)
waives, to the fullest extent it may legally and effectively do so, any objection which it may now
or hereafter have to the laying of venue of any Action in such courts of the State of New York; and
(d) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such Action in such courts of the State of New York. Each of the Parties agrees
that a final judgment in any such Action shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. The Parties to this
Agreement irrevocably consent to service of process in the manner provided for notices in Section
8.3. Nothing in this Agreement will affect the right of the Parties to this Agreement to serve
process in any other manner permitted by Law.



     8.5 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER AGREEMENTS. THE PARTIES HERETO (A) CERTIFY THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER AGREEMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 8.5.



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     8.6 Amendments; Entire Agreement. This Agreement may not be amended, supplemented or otherwise
modified except by an instrument in writing signed by all of the Parties. This Agreement and the
Other Agreements contain the entire agreement of the Parties with respect to the Transactions,
superseding all negotiations, prior discussions and preliminary agreements made prior to the
Closing Date.



     8.7 Waiver. The failure of any Party to enforce any condition or part of this Agreement at any
time shall not be construed as a waiver of that condition or part, nor shall it forfeit any rights
to future enforcement thereof.



     8.8 Severability. If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void, unenforceable or against
its regulatory policy, such determination shall not affect the enforceability of any others or of
the remainder of this Agreement.



     8.9 Schedules; Exhibits. The Exhibits and Schedules hereto are incorporated in and comprise a
material part of this Agreement.



     8.10 Construction. The language in all parts of this Agreement shall be construed, in all cases,
according to its fair meaning. The Parties acknowledge that each Party and its counsel have
reviewed and revised this Agreement and that any rule of construction to the effect that any
ambiguities are to be resolved against the drafting Party shall not be employed in the
interpretation of this Agreement.



     8.11 Headings. The headings of the sections of this Agreement are inserted for convenience only
and shall not be deemed to constitute a part of this Agreement.



     8.12 Counterparts. This Agreement may be executed manually or by facsimile by the Parties, in any
number of counterparts, each of which shall be considered one and the same agreement and shall
become effective when a counterpart of this Agreement shall have been signed by each of the Parties
and delivered to the other Party.



* * * * * * * * * * *








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     IN WITNESS WHEREOF, the Parties have caused this Asset Purchase Agreement to be executed by
their respective duly authorized officers as of the date first above written.



	 	 	 	 	 	 	 

	 	 	DUSA Pharmaceuticals, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert F. Doman
 

Robert F. Doman
	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Acella Pharmaceuticals, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Harold A. Deas
 

Harold A. Deas
	 	 
	 

	 	Title:
	 	Chief Operating Officer	 	 






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EXHIBIT A

ASSIGNMENT OF DOMAIN NAMES




     THIS ASSIGNMENT OF DOMAIN NAMES (this “Assignment”) by DUSA Pharmaceuticals, Inc., a New
Jersey corporation (“Assignor”) to Acella Pharmaceuticals, LLC (“Assignee”), of even date with that
certain Asset Purchase Agreement (“APA”) by and between Assignor and Assignee. Each of Assignor
and Assignee are at times referred to each as a “Party” and, collectively, as the “Parties.”
Unless otherwise defined herein, all capitalized terms used in this Agreement shall have the
meanings set forth in the APA.



     WHEREAS, the Parties have entered into the APA, to which this Assignment is an Exhibit and a
material part;



     WHEREAS, pursuant to the APA, the Assignor has conveyed, assigned, transferred, and delivered
to the Assignee, and the Assignee has acquired and accepted from the Assignor, all of the
Assignor’s right, claim, title, and interest in and to the Internet domain names (and underlying
registrations), websites, and web addresses set forth on the attached Schedule 1.1 (a)
(collectively, the “Domain Names”);



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged and received, and the above recitals, which are incorporated herein and
comprise a material part hereof, Assignor hereby confirms that Assignor assigns, transfers, and
conveys to the Assignee all of the Assignor’s right, claim, title, and interest in and to (1) the
Domain Names, including the goodwill appurtenant thereto, and (2) all rights to bring an action,
whether at law or in equity, for infringement, misappropriation, or misuse of the Domain Names
against any third party, and all rights against any third party to recover damages, to recover
profits, and to secure injunctive relief for all past, present, or future infringement,
misappropriation, or misuse of the Domain Names.



     FURTHERMORE, Assignor agrees to provide all assistance reasonably requested by Assignee or
otherwise necessary to fulfill the purposes of this Assignment, including executing further
consistent assurances, confirmation, assignments, transfers, and releases, and providing good faith
testimony by affidavit, declaration, deposition, or other means.



     This Assignment shall be binding upon the successors and assigns of Assignor and Assignee.
This Assignment (including any claim or controversy arising out of or relating to this Assignment)
and the rights and obligations of the Parties hereunder shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without regard to the conflict of
laws principles thereof. This Assignment may be executed in one or more counterparts, each of
which shall be deemed and original, but all of which together shall constitute one and the same
agreement.



[Remainder of Page Intentionally Left Blank]








 









 








Note: Certain portions of this document have been marked “[c.i.]” to indicate that confidential treatment has been
requested for this confidential information. The confidential portions have been omitted
and filed separately with the Securities and Exchange Commission.




     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 	 	 

	 	 	DUSA Pharmaceuticals, Inc.	 	 
	 
	 

	 	By:

Name:
	 	/s/ Robert F. Doman
 

Robert F. Doman
	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Acella Pharmaceuticals, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Harold A. Deas
 

Harold A. Deas
	 	 
	 

	 	Title:
	 	Chief Operating Officer	 	 






(Signature Page — Assignment of Domain Names)






 









 








Note: Certain portions of this document have been marked “[c.i.]” to indicate that confidential treatment has been
requested for this confidential information. The confidential portions have been omitted and filed
separately with the Securities and Exchange Commission.




EXECUTION COPY




SCHEDULE 1.1(a)

Product Domain Names




necomide.com




nicomid.com




nicomide.com




nicomide-T.com




 









 





Note: Certain portions of this document have been marked “[c.i.]” to indicate that confidential treatment has
been requested for this confidential information. The confidential portions have been omitted and filed
separately with the Securities and Exchange Commission.




EXECUTION COPY




EXHIBIT B

ASSIGNMENT OF PATENT




     THIS ASSIGNMENT OF PATENT (this “Assignment”) by DUSA Pharmaceuticals, Inc., a New Jersey
corporation (“Assignor”) to Acella Pharmaceuticals, LLC (“Assignee”), of even date with that
certain Asset Purchase Agreement (“APA”) by and between Assignor and Assignee. Each of Assignor
and Assignee are at times referred to each as a “Party” and, collectively, as the “Parties.”
Unless otherwise defined herein, all capitalized terms used in this Agreement shall have the
meanings set forth in the APA.



     WHEREAS, the Parties have entered into the APA, to which this Assignment is an Exhibit and a
material part;



     WHEREAS, Assignor owns certain rights in the Patent listed in Schedule 1.1(c) to the APA,
pursuant to which Assignor has agreed to sell to Assignee and Assignee has agreed to buy from
Assignor the Purchased Assets, including without limitation, the Patent;



     WHEREAS, under the APA, Assignor has agreed to execute a separate Assignment of Patent in
order more effectively to assign, transfer, grant, convey, assure and confirm to Assignee and its
successors and assigns, or to aid and assist in the collection of or reducing to possession by
Assignee of the Patent; and



     WHEREAS, in accordance the APA, Assignor desires to transfer and assign to Assignee, and
Assignee desires to accept the transfer and assignment of, all of Assignor’s worldwide right,
claim, title, and interest in, to and under the Patent, including without limitation, the Patent
listed in Schedule 1.1 (c) annexed hereto and incorporated herein by reference, all inventions
described therein, and all reissues, reexaminations, continuations, divisionals, substitutes,
foreign counterparts, and any and all patents, reissues, reexaminations, renewals, extensions and
other registrations arising from or claiming priority to any of the foregoing in any and all
countries.



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and received, and the foregoing recitals, which are incorporated by reference
and comprise a material part of this Assignment, Assignor and Assignee agree as follows:


1. Assignor does hereby sell, transfer, convey and assign to Assignee such entire right, title and
interest as it may have in, under and to, and Assignee hereby purchases, receives and accepts:




          (i) the Patent listed on attached Schedule 1.1(c) to the APA, together with the goodwill
associated therewith or symbolized thereby, and




          (ii) such right, claim, title and interest Assignor may have in and to any patents issuing
therefrom (including, without limitation, any new patent respecting or arising from such Patent),
and any continuations, confirmations, divisionals, re-examinations, reissues, revalidations,
registrations, supplemental protection certificates or extensions of term, including






 









 








Note: Certain portions of this document have been marked “[c.i.]” to indicate that confidential treatment has been
requested for this confidential information. The confidential portions have been omitted and filed
separately with the Securities and Exchange Commission.




EXECUTION COPY



patent term restoration of any of the foregoing patents and applications and all foreign
counterparts thereof and including such right, title and interest as it may have in the inventions
covered by the claims of such patents and patent applications (collectively, the “Assigned
Patents”), and




          (iii) such right title and interest as Assignor may have to sue and recover for any future
infringement, damage or injury to any of the Assigned Patents, and for any past infringement,
damage or injury to any of the Assigned Patents by any third parties, and collect profits or
damages with respect to the same,



each of the foregoing to be held and enjoyed by Assignee, for its own use and behalf and the use
and behalf of its successors and assigns, to the full end of the term or terms for which such
Assigned Patents may be granted as fully and entirely as the same would have been held and enjoyed
by Assignor had this sale and assignment not been made.



2. Assignor, as the registered holder of such patent or patent applications, hereby authorizes and
requests the Commissioner or Director of Patents and Trademarks of the United States, and any
official of any country foreign to the United States whose duty it is to issue patents, trademarks
or domain names, to issue and transfer the relevant Assigned Patents to Assignee, its successors
and assigns, in accordance with the terms of the assignment, or otherwise as Assignee may direct.



3. This Assignment is binding on Assignor, its successors and assigns, and will inure to the
benefit of Assignee, its successors and assigns. Nothing in this instrument, express or implied,
is intended or shall be construed to confer upon, or give to, any person, corporation or entity
other than Assignee, its successors and assigns, any remedy or claim under or by reason of this
instrument, or any terms, covenants or conditions hereof, and all the terms, covenants and
conditions in this instrument shall be for the sole and exclusive benefit of Assignee and its
successors and assigns.



4. Assignor will, at Assignee’s request, do all lawful and just acts, including, without
limitation, testifying in legal or quasi-legal proceedings and executing and acknowledging
instruments, that may be or become necessary for obtaining, sustaining or reissuing of the Patent,
and for maintaining and perfecting Assignee’s right to said invention and Patent, including,
without limitation, particularly in cases of interference and litigation.



5. Except to the extent that federal law preempts state law with respect to the matters covered
hereby, this Assignment of Patent (including any claim or controversy arising out of or relating to
this Assignment) and the rights and obligations of the Parties hereunder shall be governed by and
construed and enforced in accordance with the laws of the State of New York, without regard to the
conflict of laws principles thereof.




[Remainder of Page Intentionally Left Blank]







 









 








Note: Certain portions of this document have been marked “[c.i.]” to indicate that confidential treatment has been
requested for this confidential information. The confidential portions have been omitted
and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 	 	 

	 	 	DUSA Pharmaceuticals, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert F. Doman
 

Robert F. Doman
	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Acella Pharmaceuticals, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Harold A. Deas
 

Harold A. Deas
	 	 
	 

	 	Title:
	 	Chief Operating Officer	 	 






(Signature Page — Assignment of Patent)







 









 








Note: Certain portions of this document have been marked “[c.i.]” to indicate that confidential treatment has
been requested for this confidential information. The confidential portions have been omitted
and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




SCHEDULE 1.1(c)

Patent



U.S. Patent No. 6,979,468 entitled “Oral Composition and Method for the Treatment of Inflammatory
Cutaneous Disorders.”





 











 




Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




EXHIBIT C

ASSIGNMENT OF TRADEMARKS




     THIS ASSIGNMENT OF TRADEMARKS (this “Assignment”) by DUSA Pharmaceuticals, Inc., a New Jersey
corporation (“Assignor”) to Acella Pharmaceuticals, LLC (“Assignee”), of even date with that
certain Asset Purchase Agreement (“APA”) by and between Assignor and Assignee. Each of Assignor
and Assignee are at times referred to each as a “Party” and, collectively, as the “Parties.”
Unless otherwise defined herein, all capitalized terms used in this Agreement shall have the
meanings set forth in the APA.



     WHEREAS, the Parties have entered into the APA, to which this Assignment is an Exhibit and a
material part;



     WHEREAS, Assignor, and/or its affiliates, own Trademarks, as defined in the APA, including,
but not limited to, the Trademarks set forth on Schedule 1.1(b) attached hereto;



     WHEREAS, Assignor desires to assign all rights, claim, title, and interests in and to the
Trademarks to Assignee, including, without limitation, all goodwill appurtenant thereto; and



     WHEREAS, Assignee desires to accept such Assignment of Trademarks.



     NOW THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged
and received, and the foregoing recitals incorporated by reference and which comprise a material
part of this Assignment, Assignor does hereby sell, assign, transfer, set over, and deliver to
Assignee, and assignee purchases, receives and accepts, all rights, claim, title and interest in
and to the Trademarks, including, but not limited to, the applications and registrations shown in
Schedule 1.1(b) in respect of all goods and services covered by the specifications thereof, whether
registered or unregistered, including trade dress, trademark get-ups, logos, designs and labels,
together with all associated goodwill and all common law and related rights thereto, as well as all
rights to sue for infringement (including past infringement) in all jurisdictions of the world
where Assignor has rights.


     FURTHERMORE, Assignor will, at Assignee’s expense, execute and deliver such further instruments
including, without limitation, further instruments of assignment and take such further actions as
Assignee may reasonably request in order to register this Assignment at the appropriate registries
to demonstrate Assignee’s title to the Trademarks. Assignor agrees to provide all assistance
reasonably requested by Assignee to fulfill the purposes of this Assignment, including executing
further consistent assurances, confirmation, assignments, transfers, and releases, and providing
good faith testimony by affidavit, declaration, deposition, or other means. Assignor will not
oppose or otherwise impede any effort by Assignee to enforce or procure registration for the
Trademarks before any administrative, government or other
tribunal and further agrees that it will not utilize or seek to utilize the Trademarks, or any
confusingly similar trademarks, or the goodwill associated therewith anywhere in the world.



 









 






Note: Certain portions of this document have been marked “[c.i.]” to indicate that confidential treatment has been
requested for this confidential information. The confidential portions have been omitted and
filed separately with the Securities and Exchange Commission.




EXECUTION COPY




     This Assignment shall be binding upon the successors and assigns of Assignor and Assignee.
This Assignment (including any claim or controversy arising out of or relating to this Assignment)
and the rights and obligations of the Parties hereunder shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without regard to the conflict of
laws principles thereof. This Assignment may be executed in one or more counterparts, each of
which shall be deemed and original, but all of which together shall constitute one and the same
agreement.



[Remainder of Page Intentionally Left Blank]





























 









 







Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	DUSA Pharmaceuticals, Inc.

 	 
	 	By:  	/s/ Robert F. Doman
 
	 	Name: 	Robert F. Doman 	 
	 	Title:  	President and Chief Executive Officer 	 
	 
	 	Acella Pharmaceuticals, LLC

 	 
	 	By:  	/s/ Harold A. Deas
 	 
	 	Name:  	Harold A. Deas 	 
	 	Title:  	Chief Operating Officer 	 
	 



(Signature Page — Assignment of Trademarks)






 









 







Note: Certain portions of this document have been marked “[c.i.]” to indicate that confidential
treatment has been requested for this confidential information. The confidential portions have been
omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




SCHEDULE 1.1(b)

Trademarks




NICOMIDE®




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	 

	 	Current Owner
	 	Status
	 	Sub Status
	 	Serial #
	 	Filing Date
	 	Reg. #
	 	Reg. Date
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	United States

	 	DUSA Pharmaceuticals, Inc.
	 	Registered
	 	(None)
	 	 	78020079	 	 	August 8, 2000
	 	 	2592990	 	 	July 9, 2002






NICOMIDE — T®




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	 

	 	Current Owner
	 	Status
	 	Sub Status
	 	Serial #
	 	Filing Date
	 	Reg. #
	 	Reg. Date
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	United States

	 	DUSA Pharmaceuticals, Inc.
	 	Registered
	 	(None)
	 	 	78328165	 	 	November 14, 2003
	 	 	2982079	 	 	August 2, 2005










 









 







Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




EXHIBIT D

BILL OF SALE

AND ASSIGNMENT AGREEMENT




     This Bill of Sale and Assignment Agreement (this “Agreement”) by DUSA Pharmaceuticals, Inc., a
New Jersey corporation (“Seller”) to Acella Pharmaceuticals, LLC (“Purchaser”), of even date with
that certain Asset Purchase Agreement (“APA”) by and between Seller and Purchaser. Seller and
Purchaser are each individually referred to herein as a “Party” hereto, and are collectively
referred to as the “Parties” herein.



     WHEREAS, the Parties have entered into the APA, to which this Agreement is an Exhibit and a
material part;



     WHEREAS, pursuant to the APA, Seller has agreed to hereby sell, assign, transfer, set over,
and deliver the Purchased Assets to the Purchaser, and Purchaser has agreed to purchase, accept and
receive the same;



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and received, and the foregoing recitals, incorporated by reference and which
comprise a material part of this Assignment, the Parties hereto, intending to be legally bound,
agree as follows:


1. Definitions. Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the meanings set forth in the APA.



2. Conveyance and Assignment. The Seller does hereby sell, convey, transfer, assign and
deliver to Purchaser, and Purchaser purchases, accepts and receives all of Seller’s right, claim,
title and interest in and to the Purchased Assets, along with the original instruments, if any,
representing, evidencing or constituting such Purchased Assets in accordance with, and subject to
the terms and conditions of, the APA, to have and to hold the same unto the Purchaser, its
successors and assigns, forever.



3. Acknowledgment. The Purchaser hereby acknowledges Purchaser’s receipt of such right,
title and interest in and to the Purchased Assets, along with the original instruments, if any,
representing, evidencing or constituting such Purchased Assets, in accordance with, and subject to
the terms and conditions of, the APA.



4. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of
the Parties and their respective successors and assigns.



5. Governing Law. This Agreement (including any claim or controversy arising out of or
relating to this Agreement) and the rights and obligations of the Parties hereunder shall be
governed by and construed and enforced in accordance with the laws of the State of New York,
without regard to the conflict of laws principles thereof.




 









 







Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY



6. Conflicts with APA. Nothing contained herein shall in any way be construed to
supersede, modify, replace, amend or affect the provisions of the APA, including, without
limitation, the warranties, covenants, agreements, conditions or representations set forth
therein, or to defeat, impair, limit, expand or enlarge in any way the rights, claims or remedies
of either party under the APA, including, without limitation, the parties’ respective
indemnification obligations thereunder, but is rather intended to and does in fact vest in
Purchaser the maximum and exclusive right, claim, title and interest in and to the Purchased
Assets as permitted in equity and at law. This Agreement is intended only to effect the purchase
of the Purchased Assets pursuant to the APA and shall be governed entirely in accordance with the
terms and conditions of the APA. In the event of a conflict between the terms and conditions set
forth in this Agreement and the terms and conditions set forth in the APA, or the interpretation
and application thereof, the terms and conditions set forth in the APA shall prevail, govern and
control in all respects.



7. Severability. If any term or provision of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void, unenforceable or against its
regulatory policy such determination shall not affect the enforceability of any others or the
remainder of this Agreement.



8. Counterparts. This Agreement may be executed by facsimile and in counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute one and the
same instrument.




[Remainder of Page Intentionally Left Blank]









 









 







Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	DUSA Pharmaceuticals, Inc.

 	 
	 	By:  	/s/ Robert F. Doman
 	 
	 	Name:  	Robert F. Doman 	 
	 	Title:  	President and Chief Executive Officer 	 
	 
	 	Acella Pharmaceuticals, LLC

 	 
	 	By:  	/s/ Harold A. Deas
 	 
	 	Name:  	Harold A. Deas 	 
	 	Title:  	Chief Operating Officer 	 
	 



(Signature Page — Bill of Sale and Assignment Agreement)









 









 







Note: Certain portions of this document have been marked “[c.i.]” to indicate that confidential
treatment has been requested for this confidential information. The confidential portions have been
omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




SCHEDULE 1.1(a)

Product Domain Names




necomide.com




nicomid.com




nicomide.com




nicomide-T.com




 









 




Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




SCHEDULE 1.1(b)

Trademarks




NICOMIDE®




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	 

	 	Current Owner
	 	Status
	 	Sub Status
	 	Serial #
	 	Filing Date
	 	Reg. #
	 	Reg. Date
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	United States

	 	DUSA Pharmaceuticals, Inc.
	 	Registered
	 	(None)
	 	 	78020079	 	 	August 8, 2000
	 	 	2592990	 	 	July 9, 2002






NICOMIDE — T®




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	 

	 	Current Owner
	 	Status
	 	Sub Status
	 	Serial #
	 	Filing Date
	 	Reg. #
	 	Reg. Date
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	United States

	 	DUSA Pharmaceuticals, Inc.
	 	Registered
	 	(None)
	 	 	78328165	 	 	November 14, 2003
	 	 	2982079	 	 	August 2, 2005






 









 




Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




SCHEDULE 1.1(c)

Patent



U.S. Patent No. 6,979,468 entitled “Oral Composition and Method for the Treatment of Inflammatory
Cutaneous Disorders.”








 









 







Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




Schedule 2

Product Information





	 	•	 	For the period beginning March 1, 2006 and ending June 30, 2008, all available [c.i.]
data, subject to the consent of [c.i.], to which Seller [c.i.]. All [c.i.] shall be
subject to any requirements or conditions of [c.i.], at Purchaser’s expense, and Purchaser
agrees to assist Seller as necessary with any documentation required by [c.i.] for transfer
of [c.i.] from Seller to Purchaser; and
	 
	 	•	 	For the period beginning March 1, 2006 and ending June 30, 2008, a [c.i.] for
Nicomide®.




 









 










Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




Summary




	 	 	 	 	 
	March 1, 2006 — June 30, 2008	 	Invoices	 	Credits
	[c.i.]
	 	 	 	 
	 
	 	 	 	 
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]	 	 
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	 

	 	$ [c.i.]
	 	$([c.i.])











 









 







Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY


Summary




	 	 	 	 	 
	March 1, 2006 — June 30, 2008	 	Net invoices	 	Units shipped
	[c.i.]
	 	 	 	 
	 
	 	 	 	 
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
	 	$([c.i.])
	[c.i.]

	 	$ [c.i.]
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	 	$ [c.i.]	 	 






 









 





Note: Certain portions of this document have been marked “[c.i.]” to indicate that
confidential treatment has been requested for this confidential information. The confidential
portions have been omitted and filed separately with the Securities and Exchange Commission.




EXECUTION COPY




Schedule 3.4

Intellectual Property Disclosure



[c.i.].



License Agreement between River’s Edge Pharmaceuticals LLC and DUSA Pharmaceuticals, Inc. dated
July 3, 2008 as amended.



As part and parcel of the Purchased Assets, and as rights appurtenant to the Trademarks, Seller
sells, conveys, transfers, assigns and delivers to the Purchaser, and Purchaser purchases, takes
delivery of and acquires from Seller as assignee, all of Seller’s right, title, claim and interest
in and to [c.i.] listed above, including, without limitation, the sole and exclusive right to
enforce such Agreement in the same manner and to the same extent as Seller, to the exclusion of all
other parties.