Exhibit 10.2


 


THIRD AMENDMENT


To


OPTION AGREEMENT


DATED JANUARY 13, 2009


BETWEEN CEPHALON, INC.


AND


CEPTION THERAPEUTICS, INC.


 


This Third Amendment (hereinafter, “THIRD AMENDMENT”)
is made effective as of January 26, 2010 (the “AMENDMENT EFFECTIVE DATE”) by
and between Ception Therapeutics, Inc. (hereinafter referred to as “Ception”),
a corporation incorporated in the state of Delaware, located at 101 Lindenwood
Drive, Suite 400, Malvern, Pennsylvania 19355, and Cephalon, Inc.
(hereinafter referred to as “Cephalon”), a corporation incorporated in the
state of Delaware, located at 41 Moores Road, P.O. Box 4011, Frazer,
Pennsylvania 19355.


 


RECITALS


 


Ception and Cephalon are parties to an Option
Agreement dated January 13, 2009, as amended (hereinafter “AGREEMENT”),
which sets forth the terms and conditions under which Ception has agreed to
grant to Cephalon, for a period of time as set forth in such AGREEMENT, an
exclusive option to acquire Ception pursuant to a merger.  The parties desire to amend the AGREEMENT as
more fully described in this THIRD AMENDMENT.


 


NOW, THEREFORE, in
consideration of the premises and mutual covenants herein contained, the
parties hereby agree as follows:


 


1.               Unless
otherwise defined in this THIRD AMENDMENT, all capitalized and/or italicized
and/or bolded terms shall have the same meaning as set forth in the AGREEMENT.


 


2.               The definition
of “Option Termination Date” in Section 1.1 of the AGREEMENT is hereby
deleted in its entirety and replaced with the following new definition:


 


“Option
Termination Date” means the date that is (a) 15 business days after
the later of (i) the receipt by Optionee of the final study report for the
Res-5-0002 EE Study or (ii) the receipt by Optionee of the top-line data
from the Res-5-0010 Asthma Study (which data shall be delivered to Optionee in
a form substantially similar to the form in which the top-line data from the
Res-5-0002 EE Study were delivered by the Company to Optionee in November 2009)
or (b) such earlier date on which Optionee terminates this Agreement
pursuant to Section 7.1(b).


 


3.               Section 5.4(c) of
the AGREEMENT is hereby deleted in its entirety and replaced with the following
paragraph:


 


The
Company shall, and shall cause the Subsidiaries to:  (i) conduct each of the Res-5-0002 EE
Study and the Res 5-0010 Asthma Study in compliance in all material respects
with all applicable Requirements of Laws and in accordance with the Operating
Plan; (ii) use the 


 

















 


proceeds
of Loans (as defined in the Credit Agreement) only for funding expenses identified
in, or which are otherwise consistent with, the Operating Plan or related to
the modification of the Res-5-0002 EE Study and/or the Res-5-0004 Open Label EE
Study; (iii) keep its and their existing policies of insurance, or
comparable insurance, in full force and effect; (iv) to the extent the
Company or a Subsidiary is obligated or has the right to do so (and is
exercising such prosecution rights) pursuant to any agreement relating to
Company IP, diligently prosecute, or enforce its rights to cause another party
to such agreement relating to Company IP to diligently prosecute claims in the
pending patent applications within Company IP claiming existing products and
products currently under development; and (v) keep in force all registered
Marks by paying any maintenance fees or taxes or responding to any
actions.  The Company shall deliver (1) the
final study report relating to the Res-5-0002 EE Study within three (3) business
days after such report becomes final and (2) the top-line data from the Res-5-0010
Asthma Study by the earlier of (A) seven (7) business days after such
top-line data has been received by the Company from its third-party contractor
and (B) one (1) business day after such top-line data has been
approved for release to Optionee by the Company’s Board of Directors.


 


4.               Ception
represents and warrants to Cephalon that no approval of the stockholders of
Ception is required under the Certificate of Incorporation, the DGCL or the
Stockholders’ Agreement with respect to this THIRD AMENDMENT.


 


5.               Cephalon
expressly reserves its rights with respect to the AGREEMENT and hereby
preserves, with respect thereto, any and all claims for indemnification, or
other causes of action, relating to costs, damages, expenses, losses,
liabilities or deficiencies that occurred (or were incurred) on or prior to the
AMENDMENT EFFECTIVE DATE; provided that Cephalon shall not be entitled
to assert any claims for indemnification, or other causes of action, relating
to costs, damages, expenses, losses, liabilities or deficiencies based solely
on the results (i.e. outcome, success, failure or, to the extent caused by
events occurring outside the control of Ception, development progress) of the
Res-5-0002 EE Study, the Res-5-0004 Open-Label EE Study and/or the Res-5-0010
Asthma Study; provided  further that, subject to the foregoing
proviso, nothing herein shall be deemed to affect, restrict or limit Cephalon’s
rights, and Ception’s obligations, pursuant to Section 6.1 of the
AGREEMENT.


 


6.               Except as
provided above, all other terms and conditions of the AGREEMENT shall remain in
full force and effect.  From and after
the AMENDMENT EFFECTIVE DATE, each reference in the Agreement to “this
Agreement,” “herein,” “hereof,” “hereunder” or words of similar import, or to
any provision of the AGREEMENT, shall be deemed to refer to the AGREEMENT or
such provision as amended by the First Amendment effective as of August 4,
2009, the Second Amendment effective as of September 11, 2009 and/or this
THIRD AMENDMENT unless the context otherwise requires, and references in the
AGREEMENT to the “date hereof” or the “date of this Agreement” shall be deemed
to refer to January 13, 2009.


 


* * * * * * *


 


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IN WITNESS WHEREOF,  the parties have
executed this THIRD AMENDMENT by proper persons thereunto duly authorized.


 


	
  CEPTION
  THERAPEUTICS, INC.

  	
  CEPHALON,
  INC.

  
	
   

  	
   

  
	
  Signature:

  	
  /s/ Stephen A. Tullman

  	
   

  	
  Signature:

  	
  /s/ J. Kevin Buchi

  
	
  Stephen A. Tullman

  	
  J. Kevin Buchi

  
	
  President and Chief
  Executive Officer

  	
  Executive Vice
  President & CFO

  
					



 


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