Unassociated Document


    Exhibit
10.72

     

    INTELLECTUAL
PROPERTY ASSIGNMENT AND

    LICENSE
TERMINATION AGREEMENT

     

    This
Intellectual Property Assignment and License Termination Agreement (the
“Agreement”), effective
as of March 6, 2009 (“Effective Date”), is by and between
SARcode
Corporation, a Delaware corporation having its principal place of
business at 343 Sansome Street, Suite 505, San Francisco, CA 94104 (“SARcode”), and Sunesis  Pharmaceuticals,
Inc., a Delaware corporation having its principal place of business at
395 Oyster Point Boulevard, Suite 400, South San Francisco, CA 94080 (“Sunesis”).

     

    BACKGROUND

     

    A.           SARcode
and Sunesis entered into a license agreement dated March 30, 2006, as amended on
December 4, 2006 (the “License
Agreement”), pursuant to which SARcode obtained from Sunesis an exclusive
license to certain patents, know-how, and other intellectual property owned or
controlled by Sunesis related to certain small molecule LFA-1 antagonists (as
further defined below, the “Sunesis LFA-1 Intellectual
Property”); and

     

    B.           SARcode
now desires to acquire, and Sunesis wishes to sell and transfer to SARcode, the
Sunesis LFA-1 Intellectual Property, on the terms and conditions set forth in
this Agreement.

     

    C.           In
conjunction with such sale and acquisition of the Sunesis LFA-1 Intellectual
Property, SARcode and Sunesis wish to terminate the License Agreement, on the
terms and conditions set forth in this Agreement.

     

    Now
Therefore, in consideration of the foregoing premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:

     

    ARTICLE
1

     

    DEFINITIONS

     

    For the
purposes of this Agreement, the following terms when used with initial capital
letters shall have the respective meanings set forth below:

     

    1.1           “Affiliate” of a Party means
any person, corporation, joint venture or other business entity which, directly
or indirectly through one or more intermediaries, controls, is controlled by, or
is under common control with such Party, as the case may be.  As used
in this Section 1.1, “control” means: (a) to
possess, directly or indirectly, the power to affirmatively direct the
management and policies of such person, corporation, joint venture or other
business entity, whether through ownership of voting securities or by contract
relating to voting rights or corporate governance; or (b) direct or indirect
beneficial ownership of fifty percent (50%) or more of the voting share capital
in such person, corporation, joint venture or other business
entity.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    1.2           “Control” (including any
variations such as “Controlled” and “Controlling”), in the context
of intellectual property rights, means the rights or power to disclose, assign
or grant the applicable license or sublicense, as applicable, under this
Agreement, without violating the terms of any written agreement or other written
arrangement with any Third Party under which the party disclosing, assigning or
granting such rights first acquired such intellectual property.

     

    1.3           “Encumbrances” means any
security interest, pledge, mortgage, lien, charge, adverse claim, interest or
encumbrance of any kind or nature whatsoever, including any license or
restriction on use, transfer, disclosure or receipt of income.

     

    1.4           “Generally Applicable Sunesis LFA-1
Know-How” means any Sunesis LFA-1 Know-How to the extent that such
Know-How: (a) is generally applicable to the discovery of novel compounds and
not primarily specifically applicable to the discovery of any LFA-1 Antagonist;
and (b) is necessary or reasonably useful in connection with the research,
development, manufacture, or commercialization of products other than Products
by Sunesis, its successors, permitted assignees and/or collaboration
partners.

     

    1.5           “Know-How” means information
and tangible materials, including: (a) inventions, discoveries, ideas,
improvements, or trade secrets; (b) methods, databases, tests, assays, formulas,
procedures, processes, techniques and data, including pre-clinical data and
clinical data (including investigator reports, statistical analyses, expert
opinions and reports, safety and other electronic databases) and chemical,
pharmacological and toxicological data, as well as technical information and
manufacturing information and descriptions; (c) pharmaceutical, chemical
and biological materials, products and compositions of matter; and (d) other
know-how and technology.

     

    1.6           “LFA-1” means that certain
naturally occurring protein known as LFA-1, as described in Proc.
Nat’l Acad. Sci., Jul;78(7):4535-9,  “Lymphocyte
function-associated antigen 1 (LFA-1): a surface antigen distinct from Lyt-2,3
that participates in T lymphocyte-mediated killing,” Davignon D, Martz E,
Reynolds T, Kurzinger K, Springer TA.

     

    1.7           “LFA-1 Antagonist” means a
small molecule that inhibits the activity of LFA-1.  For such
purposes, any “small molecule” means a synthetic chemical compound with a
molecular weight less than 1000 Daltons and to “inhibit” LFA-1 means a compound
meets the inhibition criteria described in Exhibit 1.7
hereto; provided, however that a compound that meets the criteria in Exhibit 1.7
shall nonetheless not be deemed an LFA-1 Antagonist if in fact its primary
therapeutic mechanism of action is by a means other than inhibition of
LFA-1.

     

    1.8           “LFA-1 Compound” means any
compound the composition of matter of which is covered by a claim within the
Sunesis LFA-1 Patents.


    
      
         


      

      
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    1.9          “LFA-1 Records” means all
books, records, files, documents, written and other tangible materials,
documentation, databases and correspondence (including, in each case, in
electronic form to the extent the same exist in electronic form) pertaining to
or embodying any of the Sunesis LFA-1 Patents and/or Sunesis LFA-1 Know-How, to
the extent available to Sunesis from its server storage, its corporate database
(known internally at Sunesis as the RS3
database), legal files, other corporate records, laboratory notebooks and other
research records, including: (a) all records with respect to supply sources; (b)
all pre-clinical, research, and process development data, results, and reports
relating to LFA-1 or of any materials used in the discovery, research, and
development of LFA-1 and/or any LFA-1 Compounds; (b) all laboratory notebooks
and associated materials solely to the extent that they relate to LFA-1 and/or
any LFA-1 Compounds or to the biological, physiological, mechanical, or other
properties or compositions of any of the foregoing; (c) all invention
disclosures, patent applications and other documents pertaining to the Sunesis
LFA-1 Patents and/or other Sunesis LFA-1 Intellectual Property (including,
subject to Section 2.2(d), any memoranda and legal opinions and other legal
advice regarding the patentability of any inventions claimed or disclosed in the
Sunesis LFA-1 Patents and/or any of the Sunesis LFA-1 Know-How, collectively,
“LFA-1 Legal Records”)
that would be necessary or useful in prosecuting, maintaining, and enforcing any
of the Sunesis LFA-1 Patents; and (d) all written communications to and from the
patent office in any jurisdiction pertaining to any of the Sunesis LFA-1
Patents, including all office actions, responses to office actions, notices of
allowance, notices of issuance and certificates with respect to any of the
Sunesis LFA-1 Patents.  The LFA-1 Records include, without limitation,
those items identified in Exhibit
1.9.

     

    1.10        “Liability” means any and all
debts, liabilities and obligations, whether accrued or fixed, absolute or
contingent, matured or unmatured, or determined or determinable, including those
arising under: (a) any applicable law, rule or regulation; (b) any order, writ,
judgment, decree or award entered with or by any governmental, regulatory or
administrative authority, agency or commission or any court, tribunal or
judicial or arbitral body; and (c) any contract, agreement, arrangement,
commitment or undertaking.

     

    1.11        “Party” means SARcode and
Sunesis, individually; and “Parties” means SARcode and
Sunesis, collectively.

     

    1.12        “Patent” means any patents and
patent applications, together with all additions, divisions, continuations,
continuations-in-part, substitutions, reissues, re-examinations, extensions,
registrations, patent term extensions, supplemental protection certificates,
renewals, and the like with respect to any of the foregoing.

     

    1.13        “Permitted Encumbrances” means:
(a) the security interest granted by SARcode to Sunesis pursuant to Section
6.2(b) of the License Agreement and Section 9.8 of each of the Promissory
Notes; and (b) the license granted by SARcode to Sunesis under the
Generally Applicable Sunesis LFA-1 Know-How pursuant to Section 2.4(b) of
this Agreement and any sublicenses granted by Sunesis under and in accordance
with such license.

     

    1.14        “Product” means any
pharmaceutical preparation which incorporates an LFA-1 Compound or other LFA-1
Antagonist as an active ingredient.

     

    1.15        “Sunesis LFA-1 Intellectual
Property” means Sunesis LFA-1 Patents and Sunesis LFA-1
Know-How.


    
      
         


      

      
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    1.16        “Sunesis LFA-1 Know-How” means
(a) all Know-How relating to the development or commercialization of any Product, including
the Know-How set out on Exhibit 1.16
attached to this Agreement, that was licensed to SARcode by Sunesis pursuant to
the License Agreement; and (b) all other Know-How, if any, owned or
Controlled by Sunesis as of the Effective Date and that relates directly to the
development or commercialization of any LFA-1 Antagonist or any Product;
including, in the case of each of paragraphs (a) and (b), all intellectual
property rights therein.

     

    1.17        “Sunesis LFA-1 Patents” means
all Patents in any country of the world that are identified in Exhibit 1.17
attached to this Agreement, together with all additions, divisions,
continuations, continuations-in-part, substitutions, reissues, re-examinations,
extensions, registrations, patent term extensions, supplemental protection
certificates, renewals, and the like with respect to any of the
foregoing.

     

    1.18        “Third Party” means any person,
corporation, joint venture or other business entity, other than Sunesis, SARcode
and their respective Affiliates.

     

    ARTICLE
2

     

    ASSIGNMENT
AND DELIVERY

     

    2.1          Assignment.  As of
the Effective Date, and upon the terms and conditions set forth in this
Agreement, Sunesis hereby irrevocably sells, assigns, conveys, and transfers to
SARcode, and SARcode hereby acquires from Sunesis, free and clear of any
Encumbrances (other than the Permitted Encumbrances), all right, title, and
interest in, to and under the following assets (collectively, the “Transferred
Assets”):

     

    (a)           the
Sunesis LFA-1 Know-How;

     

    (b)           the
Sunesis LFA-1 Patents;

     

    (c)           the
LFA-1 Records; and

     

    (d)           together
with all income, damages, royalties, and payments due or payable as of the
Effective Date (other than any payments that have accrued but not been paid by
SARcode to Sunesis under the License Agreement as of the Effective Date) or
thereafter relating to the Sunesis LFA-1 Intellectual Property (including
damages and payments for past or future infringements or misappropriations
thereof), remedies against infringements or misappropriations of any of the
Sunesis LFA-1 Intellectual Property (including the right to sue and recover
damages for any past infringement or misappropriations thereof) and any and all
other rights that now or hereafter may arise or be secured under the laws of any
jurisdiction, with respect to any item within paragraphs (a) through (d)
above.

     

    The
transfer of the Transferred Assets pursuant to this Agreement includes the
assumption of all Liabilities related to the Transferred Assets that arise after
the Effective Date, and shall not include the assumption of any Liability
related to any Transferred Asset that is existing as of the Effective Date or
that arose prior to the Effective Date (including payment that became
due).  The preceding sentence is not intended to limit: (A) any
remedy of SARcode as a result of any breach of any representation or warranty of
Sunesis made or undertaken in Section 6.1 or Section 6.2 below;
(B) the Parties’ respective indemnification obligations pursuant to
Section 8.4 below; nor (C) any surviving indemnification obligations
of either Party under the License Agreement pursuant to Section 3.1 below
with respect to any matters existing as of or occurring prior to the Effective
Date.


    
      
         


      

      
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    2.2           Delivery.

     

    (a)           Promptly
following the Effective Date, and in no event later than forty-five (45)
days after the Effective Date, Sunesis shall deliver to SARcode all LFA-1
Records and all other physical embodiments of the Sunesis LFA-1 Know-How in
accordance with Section 2.1(a) above; provided that the delivery of any
LFA-1 Legal Records shall be subject to Section 2.2(d) below and any LFA-1
Records contained within Mixed Original Records (as further defined in Section
2.3(a) below) shall be handled in accordance with Section 2.3
below.

     

    (b)           Sunesis
agrees to make its personnel reasonably available by telephone to answer
questions regarding the Sunesis LFA-1 Intellectual Property for a period of
ninety (90) days following the Effective Date.  In addition, in the
case of former employees and contractors of Sunesis, Sunesis agrees to use
reasonable efforts to locate personnel who may be able to provide further
assistance to SARcode in understanding, utilizing and assimilating the Sunesis
LFA-1 Intellectual Property.

     

    (c)           If,
within twelve (12) months after the transfer and delivery of the LFA-1
Records and other physical embodiments of the Sunesis LFA-1 Know-How in
accordance with this Section 2.2, SARcode identifies specific items within such
LFA-1 Records and/or Sunesis  LFA-1 Know-How that were not delivered
to SARcode, Sunesis shall use all reasonable efforts to deliver such items to
SARcode promptly following SARcode’s written request for such
items.  After the expiration of such twelve (12) month period, if
SARcode identifies specific items within such LFA-1 Records and/or Sunesis LFA-1
Know-How that were not delivered to SARcode and SARcode would be materially
impeded with respect to the development or commercialization of any LFA-1
Antagonist or Product by not having such item, Sunesis shall use reasonable
efforts to deliver such items to SARcode as soon as practicable following
SARcode’s written request for such items.  It is understood that, if
any such items requested by SARcode pursuant to this Section 2.2(c) are
LFA-1 Legal Records or included in the Mixed Original Records, Sunesis shall
deliver to SARcode copies of the same in the same manner as described in
Section 2.2(d) or Section 2.3(a) below, respectively.  This
Section 2.2(c) shall constitute Sunesis’ sole liability and SARcode’s sole
remedy for any failure of Sunesis to deliver LFA-1 Records and/or Sunesis LFA-1
Know-How in accordance with the timing set forth in Section 2.2(a), provided
that such failure was not the result of Sunesis’ negligence or willful
misconduct.  For clarity, nothing in the preceding sentence is
intended to limit: (i) Sunesis’ obligations to assign and transfer to
SARcode the LFA-1 Records and and/or Sunesis LFA-1 Know-How in accordance with
Section 2.1(a) above, nor any remedies of SARcode in the event that Sunesis
does so fail to assign and transfer the same to SARcode; (ii) Sunesis’
obligations and SARcode’s rights with respect to the Mixed Original Records
under Sections 2.3(b) and 2.3(c) below; nor (iii) any obligations of
Sunesis and/or any rights of SARcode pursuant to Section 5.1
below.

     

    (d)           With
respect to any LFA-1 Legal Records, if the delivery of any such LFA-1 Legal
Records by Sunesis to SARcode would be reasonably likely to result in a loss of
Sunesis’ attorney-client privilege with respect to such records or any
limitation on either Party’s ability to claim attorney-client privilege therein,
then the Parties shall discuss in good faith any additional terms upon which
such records will be delivered by Sunesis to SARcode to protect against such
loss or limitation of attorney-client privilege, such as the execution of a
reasonable common interest agreement mutually acceptable to the Parties or the
like.


    
      
         


      

      
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    2.3           Mixed Original
Records.

     

    (a)           The
Parties acknowledge and agree that, notwithstanding Section 2.1(c) above, the
physical possession of certain records included in the LFA-1 Records may not be
able to be delivered to SARcode because: (i) such records contain information
pertaining to or embodying any Sunesis LFA-1 Know-How and/or Sunesis LFA-1
Patents and to other programs conducted by Sunesis (including any such programs
conducted by Sunesis in collaboration with a Third Party); and/or (ii) it is a
laboratory notebook or it is otherwise essential that the physical integrity of
such records be maintained (collectively, “Mixed Original
Records”).  Sunesis shall provide SARcode with: (A) a
complete inventory of all Mixed Original Records promptly following the
Effective Date, and in no event later than forty-five (45) days following
the Effective Date; and (B) copies (including in electronic form, to the
extent such items exist in electronic form) of such Mixed Original Records
(subject to redaction of any information unrelated to any of the Sunesis LFA-1
Know-How and/or Sunesis LFA-1 Patents) within ninety (90) days following
the Effective Date.

     

    (b)           On
and from the Effective Date, Sunesis shall use all reasonable efforts to
continue to safely store and maintain the integrity of the Mixed Original
Records and Sunesis shall not destroy or otherwise dispose of any such records
without first complying with the procedures identified in Section 2.3(c)
below.

     

    (c)           To
the extent that Sunesis at any time after the Effective Date wishes to destroy
or otherwise dispose of any Mixed Original Records, Sunesis shall notify SARcode
in writing at least sixty (60) days prior to the date of such intended
destruction or disposal and shall provide SARcode with an opportunity to review
and have access to such Mixed Original Records and, to the extent that SARcode
indicates that it wishes to obtain physical possession of such records, Sunesis
will promptly deliver the same to SARcode, in each case subject to redaction of
any information unrelated to any of the Sunesis LFA-1 Know-How and/or Sunesis
LFA-1 Patents.  To the extent that it is not reasonably practicable
for Sunesis to redact from such Mixed Original Records all Third Party
information (or information with respect to which Sunesis has confidentiality
obligations imposed by a written agreement with a Third Party) that is unrelated
to any of the Sunesis LFA-1 Know-How and/or Sunesis LFA-1 Patents, SARcode’s
review or taking possession of such Mixed Original Records under this Section
2.3 shall be contingent upon SARcode entering into an appropriate
confidentiality agreement that reasonably addresses any written confidentiality
obligations imposed by such Third Party on Sunesis with respect to relevant
Mixed Original Records.


    
      
         


      

      
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    2.4           License
Grants.

     

    (a)           License to
SARcode.  Subject to the terms and conditions of this
Agreement, Sunesis hereby grants to SARcode a non-exclusive, sublicensable,
worldwide, royalty-free, fully-paid up and irrevocable right and license under
any and all Patents Controlled by Sunesis or its Affiliates as of the Effective
Date that cover the development, manufacture, use, sale, importation or other
exploitation of any Product in order to research, develop, make, have made, use,
offer for sale, sell, import and otherwise exploit Products.

     

    (b)           License to
Sunesis. Subject to the terms and
conditions of this Agreement, SARcode hereby grants to Sunesis a non-exclusive,
sublicensable, worldwide, royalty-free, fully paid, and irrevocable right and
license, under the Generally Applicable Sunesis LFA-1 Know-How to research,
develop, make, have made, use, offer for sale, sell, import and otherwise
exploit products other than Products by Sunesis, its successors, permitted
assignees and/or collaboration partners.

     

    ARTICLE
3

     

    TERMINATION
OF LICENSE AGREEMENT

     

    3.1          Termination of License
Agreement.  Effective as of the Effective Date, notwithstanding
the provisions set forth in the License Agreement, SARcode and Sunesis agree
that the License Agreement shall be, and is hereby,
terminated.  SARcode and Sunesis further agree that, the survival
provisions set forth in Article 11 of the License Agreement are hereby amended,
such that only the following provisions of the License Agreement shall survive
termination:

     

    (a)           Article
9, it being understood, however, that the Sunesis LFA-1 Know-How and LFA-1
Records shall as of the Effective Date no longer be Proprietary Information of
Sunesis and Sunesis’ use and disclosure of the Sunesis LFA-1 Know-How (including
the Generally Applicable Sunesis LFA-1 Know-How) and LFA-1 Records following the
Effective Date shall be governed solely by Section 7.1 of this
Agreement;

     

    (b)           Sections
13.1, 13.2 and 13.3 (but only to the extent necessary to cover the performance
of each Party under the License Agreement up to and including the termination of
the License Agreement);

     

    (c)           Section
14.5 and 14.7; and

     

    (d)           any
definition of capitalized terms that are used in any of the foregoing Articles
and/or Sections, whether such capitalized terms are defined in Article 1 or any
other provision of the License Agreement.

     

    For the
avoidance of doubt, all payment and reporting obligations of SARcode under the
License Agreement (including pursuant to Sections 5.3, 6.3, 6.4, 7.1 and 8.1 of
such agreement) shall terminate and be of no further force or effect as of the
Effective Date.


    
      
         


      

      
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    3.2           Promissory Notes.

     

    (a)           Concurrently
with the termination of the License Agreement, SARcode and Sunesis shall amend
and restate each promissory note issued by SARcode to Sunesis pursuant to
Section 6.2 of the License Agreement (each, a “Promissory Note,” and
collectively, the “Promissory
Notes”) and each such amended and restated Promissory Note shall be
substantially the same as the form of secured convertible promissory attached as
Exhibit 3.2 to
this Agreement.

     

    (b)           Notwithstanding
termination of the License Agreement pursuant to Section 3.1 above or the
amendment and restatement of the Promissory Notes pursuant to
Section 3.2(a) above, each of Sunesis and SARcode hereby acknowledge and
agree that neither the termination of the License Agreement nor the amendment
and restatement of the Promissory Notes triggers an acceleration of a payment
obligation of SARcode or any event of default or penalty on the part of SARcode
under the Promissory Notes, including pursuant to the provision contained in
clause (e)(ii) of Section 5 - “Acceleration” of each Promissory Note
prior to the amendment and restatement of the same.

     

    ARTICLE
4

     

    CONSIDERATION

     

    4.1           Fee.  As
consideration for the Transferred Assets and the rights granted by Sunesis to
SARcode under this Agreement, SARcode will pay Sunesis a one-time payment in the
amount of Two Million Dollars (US$2,000,000), which amount shall be payable by
wire transfer in immediately available funds into an account designated by
Sunesis in two installments as follows:

     

    (a)           One
Million Eight Hundred Thousand Dollars (US$1,800,000) on the Effective Date;
and

     

    (b)           Two
Hundred Thousand Dollars (US$200,000) within ten (10) days after the delivery by
Sunesis of all of the LFA-1 Records (including copies of the relevant Mixed
Original Records) and other physical embodiments of the Sunesis LFA-1 Know-How
in accordance with Sections 2.2(a) and 2.3(a) above and the assignments pursuant
to Section 5.1(c) below.

     

    4.2           Taxes.  Sunesis will
be responsible for, and will indemnify SARcode against, any and all taxes incurred in connection
with the acquisition of the Transferred Assets by SARcode.

     

    ARTICLE
5

     

    COOPERATION
AND ASSISTANCE

     

    5.1           Cooperation and
Assistance.  It is understood that on and from the Effective
Date, SARcode, as assignee, shall have the sole right to control, at its cost
and in its discretion, the prosecution and maintenance of Patents within the
Sunesis LFA-1 Intellectual Property (including any Sunesis LFA-1 Patents and any
Patent filed by SARcode claiming any Sunesis LFA-1 Know-How and/or any other
Sunesis LFA-1 Intellectual Property) (“Assigned Patents”) in all
jurisdictions, using patent counsel of SARcode’s choice.


    
      
         


      

      
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    (a)           Sunesis
shall provide to SARcode, and/or its designee, as reasonably requested by
SARcode and at SARcode’s expense (including reasonable attorney’s fees and other
reasonable legal expenses), full cooperation and assistance (including the
execution and delivery of any and all affidavits, declarations, oaths, exhibits,
assignments, powers of attorney, or other documentation as may be reasonably
required): (i) in order to allow SARcode to apply for, register, obtain,
maintain, defend, and enforce the Assigned Patents and/or its rights therein, in
any and all countries; (ii) in connection with the prosecution or defense of any
interference, opposition, re-examination, reissue, infringement, declaratory
judgment, or other judicial or legal administrative proceedings that may arise
in connection with any such Assigned Patents (including the validity and/or
enforceability thereof) and/or any other Sunesis LFA-1 Intellectual Property
(including testifying as to any facts, production of any documents, responses to
any requests or demands relating to any such Assigned Patents and/or any other
Sunesis LFA-1 Intellectual Property); and/or (iii) in order to perfect the
delivery, assignment, and conveyance to SARcode, its successors, assigns, and
nominees, of the entire right, title, and interest in and to all Sunesis LFA-1
Intellectual Property.  In addition, Sunesis shall use all reasonable
efforts to cause its relevant current and/or former employees and/or contractors
to cooperate with and assist SARcode (and/or its designee) in connection with
each of the matters described in this Section 5.1(a) on substantially
similar terms.

     

    (b)           Without
limiting Section 5.1(a) above, Sunesis agrees that, if SARcode (and/or its
designee) is unable to secure the signature of Sunesis, or any of its relevant
current or former employees and/or contractors after using reasonable efforts to
do so (including providing written notice to Sunesis or such employee or
contractor, as applicable), that SARcode may deem reasonably necessary or useful
in order allow SARcode to apply for, register, obtain, maintain, defend, and
enforce the Assigned Patents and/or its rights therein or to conduct any of the
other activities described in Section 5.1(a) above, then Sunesis hereby
irrevocably designates and appoints SARcode and its duly authorized officers and
agents as Sunesis’ agent and attorney-in-fact, to act for and on Sunesis’ behalf
to execute and file any papers and oaths and to do all other lawfully permitted
acts with respect to such rights (including the authority to exercise any grant
of agency or power of attorney that Sunesis may hold or have been granted,
including by Sunesis’ relevant current or former employees and/or contractors)
to further the prosecution, issuance, maintenance and enforcement of such
Assigned Patents and other Sunesis LFA-1 Intellectual Property with the same
legal force and effect as if executed by Sunesis or such employee or contractor,
as applicable. This power of attorney shall be deemed coupled with an interest,
and shall be irrevocable.

     

    (c)           Without
limiting the scope of Sunesis’ obligations under Sections 2.1, 2.2(a) above or
5.1(a) above or SARcode’s rights under Section 5.1(b) above, on or promptly
after the Effective Date (and no later than five (5) days after the Effective
Date), Sunesis shall deliver to SARcode an assignment or assignments
substantially in the form of Exhibit 5.1
attached to this Agreement, pursuant to which Sunesis assigns to SARcode all of
the Sunesis LFA-1 Patents, which such assignment(s) shall be dated as of the
Effective Date and duly executed by an authorized representative of
Sunesis.


    
      
         


      

      
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    ARTICLE
6

     

    REPRESENTATIONS
AND WARRANTIES

     

    6.1           Mutual Representations and
Warranties.  Each Party hereby represents and warrants to the
other Party that, as of the Effective Date:

     

    (a)           Such
Party is a corporation duly organized, validly existing, and in good standing
under the laws of the state of Delaware, and has full corporate power and
authority and the legal right to own and operate its property and assets and to
carry on its business as it is now being conducted and as contemplated in this
Agreement, including, without limitation, the right to make the assignments
hereunder;

     

    (b)           Such
Party has the corporate power and authority, and has obtained all approvals,
permits, and consents necessary, to enter into this Agreement and perform its
obligations hereunder; and it has taken all necessary corporate action on its
part required to authorize the execution and delivery of this Agreement and the
performance of its obligations hereunder;

     

    (c)           This
Agreement has been duly executed and delivered on behalf of such Party, and
constitutes a legal, valid, and binding obligation of such Party that is
enforceable against it in accordance with its terms;

     

    (d)           The
execution, delivery and performance of this Agreement by such Party does not
conflict with, and would not result in a breach of, any agreement, instrument,
or understanding, oral or written, to which it is a party or by which it may be
bound, nor violate any material law or any regulation of any court, governmental
body, or administrative or other agency having jurisdiction over  such
Party; and

     

    (e)           Such
Party is not aware of any action, suit, inquiry, or investigation instituted by
any Third Party that questions or threatens the validity of this
Agreement.

     

    6.2           Representations and Warranties of
Sunesis.  Sunesis hereby represents and warrants to SARcode
that, as of the Effective Date (except as otherwise noted in an individual
representation and warranty):

     

    (a)           except
for the rights and licenses granted by Sunesis to SARcode under the License
Agreement, Sunesis owns and possesses all right, title, and interest in and to
all of the Sunesis LFA-1 Intellectual Property and the LFA-1 Records, including
all Patents and other items identified in Exhibits 1.9, 1.16 or
1.17 to this Agreement;

     

    (b)           Immediately
prior to the termination of the License Agreement pursuant to Section 3.1 above,
and except for the rights and licenses granted by Sunesis to SARcode under the
License Agreement: (i) Sunesis owned all right, title and interest in and
to all Patents, Know-How and other intellectual property rights licensed to
SARcode under the License Agreement; and (ii) other than the Sunesis LFA-1
Intellectual Property, neither Sunesis nor any of its Affiliates owned or
Controlled any right or interest in (A) any Patents that contain one or
more claims to LFA-1 or any LFA-1 Antagonist or (B) any Know-How known to
Sunesis, without a duty to investigate, to relate directly to the development or
commercialization of any LFA-1 Antagonist or any Product;


    
      
         


      

      
        -10-

        
          

        

      

      
         


      

    

     

    (c)           All
of the Patents, Know-How and other intellectual property that was licensed to
SARcode pursuant to the License Agreement immediately prior to the termination
of such agreement is included in the Sunesis LFA-1 Intellectual
Property;

     

    (d)           Neither
Sunesis nor any of its Affiliates possess or Control any compounds synthesized
by or under the direction or control of Sunesis or any of its Affiliates that
are, to Sunesis’ knowledge without duty to investigate, related to
LFA-1;

     

    (e)           The
Sunesis LFA-1 Intellectual Property is not subject to any Encumbrances, other
than the Permitted Encumbrances;

     

    (f)           Sunesis
has not assigned, licensed or granted any interest in or rights or options with
respect to any of the Sunesis LFA-1 Intellectual Property, other than the rights
and licenses granted by Sunesis to SARcode under the License Agreement or rights
and licenses granted by Sunesis under the Generally Applicable Sunesis LFA-1
Know-How that are unrelated to Products; and no consents from any other person,
corporation, or other business entity are required under any agreements
concerning any of the Sunesis LFA-1 Intellectual Property in order for the
transfer and assignment of any of the Sunesis LFA-1 Intellectual Property under
this Agreement to be legally effective;

     

    (g)           Except
as separately disclosed to SARcode in writing, all of Sunesis’ employees,
consultants and Third Party contractors that were involved in the discovery,
research and/or development activities conducted by or on behalf of Sunesis
relating to LFA-1 are and were subject to written obligations: (a)  to
assign to Sunesis all inventions and other intellectual property they developed
in the course of their employment or engagement by Sunesis, and to cooperate
with and assist Sunesis (or its designee) to allow Sunesis to perfect such
assignment and apply for, obtain, and maintain appropriate intellectual property
registrations with respect to the same; and (b) of confidentiality and
non-disclosure at least as protective of SARcode and its Proprietary Information
as Article 9 of the License Agreement;

     

    (h)           to
Sunesis’ actual knowledge, and without duty to investigate, Sunesis’ practice of
the Sunesis LFA-1 Intellectual Property has not infringed, misappropriated or
otherwise conflicted with any Patent, trademark, trade secret, copyright or
other intellectual property right of any Third Party and there are no actions,
suits, investigations, claims or proceedings pending or threatened against
Sunesis in any way relating to the Sunesis LFA-1 Intellectual
Property;

     

    (i)           to
Sunesis’ actual knowledge, and without duty to investigate, no Third Party has
infringed, misappropriated, or otherwise conflicted with any of the Sunesis
LFA-1 Intellectual Property;

     

    (j)           Sunesis
has taken all commercially reasonable actions to maintain and protect the
Sunesis LFA-1 Patents and the Know-How and other intellectual property that were
licensed to SARcode pursuant to the License Agreement after the execution of the
License Agreement, consistent with its obligations and powers
thereunder

     

    (k)           to
Sunesis’ actual knowledge, and without duty to investigate, all of the issued
Patents in the Sunesis LFA-1 Patents are not invalid and not unenforceable, none
of the Sunesis LFA-1 Intellectual Property has been misused by Sunesis, and no
claim by any Third Party contesting the validity, enforceability, use, or
ownership of any of the Sunesis LFA-1 Intellectual Property has been made, is
currently outstanding, or is threatened; and


    
      
         


      

      
        -11-

        
          

        

      

      
         


      

    

     

    (l)           During
the term of the License Agreement, Sunesis did not engage, either alone or with
a Third Party, nor authorize any of its Affiliates or any Third Party to engage,
in any discovery, research, development or commercialization directed to LFA-1
or any small molecule known to be an LFA-1 Antagonist and Sunesis does not have
any present intention to engage, either alone or with or through any Affiliate
or Third Party, in any such activity.

     

    6.3           Representations and Warranties of
SARcode.  SARcode hereby represents and warrants to Sunesis
that, as of the Effective Date:

     

    (a)           to
SARcode’s actual knowledge, and without duty to investigate, its practice of the
Sunesis LFA-1 Intellectual Property under the License Agreement, has not
infringed, misappropriated, or otherwise conflicted with any Patent, trademark,
trade secret, copyright, or other intellectual property right of any Third
Party;

     

    (b)           SARcode
has taken all commercially reasonable actions to maintain and protect the
Sunesis LFA-1 Intellectual Property consistent with its obligations and powers
under the License Agreement; and

     

    (c)           Other
than development milestone 1 and the payment made therefor as described in
Section 6.3(a) of the License Agreement, no other development milestone
described in Section 6.3(a) of the License Agreement has occurred, and no
payment with respect to any other  such development milestone has
become due and payable.

     

    6.4           Disclaimer.  EXCEPT
AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
REPRESENTATION OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT, OR VALIDITY OF ANY PATENTS ISSUED OR PENDING.

     

    ARTICLE
7

     

    CONFIDENTIALITY

     

    7.1           Treatment of Confidential
Information.

     

    (a)           Sunesis
hereby acknowledges and agrees that, on and from the Effective Date, the Sunesis
LFA-1 Intellectual Property and LFA-1 Records shall be confidential information
of SARcode (collectively the “LFA-1 Confidential
Information”) and Sunesis shall maintain in confidence and shall not use
such LFA-1 Confidential Information for any purpose, except that Sunesis may:
(i) use the LFA-1 Confidential Information if necessary to fulfill Sunesis’
obligations under this Agreement; (ii) disclose any LFA-1 Confidential
Information to its respective directors, officers, employees, contractors, or
representatives to whom it is necessary to disclose such confidential
information for the purposes of this Agreement; provided that, prior to any such
disclosure, such persons are bound by written obligations of confidentiality and
non-use with respect to the LFA-1 Confidential Information that are
substantially similar in scope and duration to those set forth in this Section
7.1; and (iii) if and to the extent required by Sunesis’ document retention
policies, retain one copy of any LFA-1 Records for the purposes of determining
Sunesis’ compliance with its obligations under this Agreement and/or the License
Agreement; provided that, for clarity, this clause (iii) shall not be
construed to limit Sunesis’ ability to retain the original versions of the Mixed
Original Records in accordance with Section 2.3 above.  Further,
in addition to the ability to use and disclose LFA-1 Confidential Information as
described above in this Section 7.1(a), with respect to the Generally
Applicable Sunesis LFA-1 Know-How only, Sunesis may: (A) use the Generally
Applicable Sunesis LFA-1 Know-How to exercise its rights under
Section 2.4(b) of this Agreement; and (B) disclose any Generally
Applicable Sunesis LFA-1 Know-How to its collaborators and (sub)licensees in
connection with the exercise of Sunesis’ rights and license under
Section 2.4(b) of this Agreement; provided that, prior to any such
disclosure, such persons are bound by written obligations of confidentiality and
non-use with respect to the Generally Applicable Sunesis LFA-1 Know-How that are
substantially similar in scope and duration to those set forth in this Section
7.1

     

    
      
        
        

      

      
        -12-

        
          

        

      

      
        
        

      

    

     

    (b)           The
obligations of the Sunesis under this Section 7.1 not to disclose or use the
LFA-1 Confidential Information shall not, however, apply to the extent that
Sunesis can prove that any such information, data, or materials: (i) are or
become generally available to the public, or otherwise part of the public
domain, other than by acts or omissions of Sunesis in breach of this Agreement
or any surviving obligations of Sunesis under the License
Agreement;  or (ii) is subsequently and independently developed by or
for the Sunesis without use of or reference to the Proprietary Information (as
defined in the License Agreement) of SARcode or any of the LFA-1 Confidential
Information.  Sunesis acknowledges and agrees that it shall not be
relieved of its obligations of non-disclosure and non-use under this Agreement
or any surviving provisions of the License Agreement on the basis that any of
the LFA-1 Confidential Information was in the possession of Sunesis prior to the
Effective Date.

     

    7.2           Nondisclosure of Terms; Press
Release.  Each Party agrees not to disclose to any Third Party
the terms of this Agreement without the prior written consent of the other Party
hereto, except each Party may disclose the terms of this
Agreement:  (a) to advisors (including financial advisors, attorneys
and accountants), actual or potential acquisition partners or private investors,
and others on a need-to-know basis, in each case under appropriate
confidentiality obligations; or (b) to the extent necessary to comply with
applicable laws and court orders (including securities laws, regulations or
guidances); provided that in the case of paragraph (b), the disclosing Party
shall promptly notify the other Party and (other than in the case where such
disclosure is necessary, in the reasonable opinion of the disclosing Party’s
legal counsel, to comply with securities laws, regulations or guidances) allow
the other Party a reasonable opportunity to oppose with the body initiating the
process and, to the extent allowable by law, to seek limitations on the portion
of the Agreement that is required to be disclosed.  Notwithstanding
the foregoing, the Parties shall  mutually agree upon the text of a
press release to announce the execution of this Agreement and, following the
issuance of such press release, SARcode and Sunesis may each disclose to Third
Parties the information contained in such press release without the need for
further approval by the other.


    
      
         


      

      
        -13-

        
          

        

      

      
         


      

    

     

    ARTICLE
8

     

    MISCELLANEOUS

     

    8.1           Governing Law;
Venue.  This Agreement shall be governed by, and construed in
accordance with the laws of the State of California, as if entered into by
California residents and executed and wholly performed within the State of
California.  Any dispute as to the performance, enforcement, validity,
or interpretation of this Agreement shall be brought only in a federal court of
competent jurisdiction (or a state court if no federal court has jurisdiction)
located in the Northern District of California, and the Parties hereby submit to
the exclusive jurisdiction and venue of such courts.

     

    8.2           Entire
Agreement.  This Agreement (including all exhibits attached
hereto) and the Promissory Notes (as specifically amended and restated by this
Agreement) contain the entire agreement between the Parties with respect to the
subject matter hereof and supersede any and all prior and contemporaneous
express and implied, agreements, understandings, and representations, either
written or oral, which may have related to the subject matter hereof in any way;
it being understood that nothing in this Section 8.2 is intended to limit the
terms of Section 3.1 above with respect to the survival of the provisions of the
License Agreement specifically identified in such sections.

     

    8.3           Assignment.  This
Agreement may not be assigned or otherwise transferred, by either Party without
the consent of the other Party; provided, however, that either Party may,
without such consent from the other Party, assign this Agreement and its rights
and obligations hereunder to an Affiliate or in connection with the transfer or
sale of all or substantially all of its assets or business, or in the event of
its merger or consolidation or change in control or similar
transaction.  Any permitted assignee shall assume all obligations of
its assignor under this Agreement.  Without limiting the preceding
sentence, Sunesis shall ensure that any assignee or licensee of a Patent
described in Section 2.4(a) above is notified in writing of the terms of Section
2.4(a) and agrees in writing to be bound by the terms of such provision, unless
and to the extent that Sunesis’ failure to provide such notice and/or of any
assignee or licensee to so agree would not limit or otherwise affect SARcode’s
ability to exercise such license.  Any purported assignment by a Party
in violation of this Agreement shall be void.  For the avoidance of
doubt, it is understood that nothing in this Section 8.3 or any other provision
of this Agreement shall limit or otherwise restrict SARcode’s ability to freely
assign or otherwise transfer any of the Transferred Assets; provided that to the
extent such Transferred Assets include the Generally Applicable Sunesis LFA-1
Know-How, such assignee or transferee is notified in writing of the terms of
Section 2.4(b) and agrees in writing to be bound by the terms of such provision,
unless and to the extent that SARcode’s failure to provide such notice and/or of
any assignee or transferee to so agree would not limit or otherwise affect
Sunesis’ability to exercise its license under Section 2.4(b).  This
Agreement shall be binding upon, and inure to the benefit of, each Party, its
successors and permitted assigns.

     

    8.4           Indemnity.

     

    (a)           Indemnification by
Sunesis.  Unless otherwise provided herein, Sunesis agrees to
indemnify, hold harmless, and defend SARcode and its directors, officers,
employees, and agents from and against any and all Third Party suits, claims,
actions, or demands (“Claims”), and any liabilities,
expenses and/or losses incurred as a direct result of same, including reasonable
legal expenses and attorneys’ fees (collectively, “Losses”), to the extent
arising out of or attributable to any of the following:


    
      
         


      

      
        -14-

        
          

        

      

      
         


      

    

     

    (i)                 a
breach by Sunesis of a representation, warranty, or covenant made or undertaken
by Sunesis under this Agreement;

     

    (ii)                 Sunesis’
practice of the license granted by SARcode to Sunesis pursuant to
Section 2.4(b) of this Agreement; or

     

    (iii)                 the
negligence, recklessness or willful misconduct of Sunesis, any of its
Affiliates, or any of their respective employees or agents.

     

    Such
indemnity shall not apply if SARcode fails to comply with the indemnification
procedures set forth in Section 8.4(c) hereof or to the extent that a Claim or
Loss was the result of: (A) a breach by SARcode of a representation,
warranty, or covenant made or undertaken by SARcode under this Agreement;
(B) the negligence, recklessness or willful misconduct of SARcode, any of
its Affiliates, or any of their respective employees or agents or (C) a
matter in respect of which Sunesis is entitled to indemnification under the
surviving provisions of the License Agreement.

     

    (b)           Indemnification by
SARcode.  Unless otherwise provided herein, SARcode agrees to
indemnify, hold harmless, and defend Sunesis and its directors, officers,
employees, and agents from and against any and all Claims and Losses, to the
extent arising out of or attributable to any of the following:

     

    (i)                 a
breach by SARcode of a representation, warranty, or covenant made or undertaken
by SARcode under this Agreement;

     

    (ii)                 SARcode’s
practice of the license granted by Sunesis to SARcode pursuant to
Section 2.4(a) of this Agreement;

     

    (iii)                 the
negligence, recklessness or willful misconduct of SARcode, any of its
Affiliates, or any of their respective employees or agents;

     

    (iv)                 SARcode’s
practice of the license granted by Sunesis to SARcode pursuant to Article 2
of the License Agreement during the term of such agreement; or

     

    (v)                 SARcode’s
use or operation of the Transferred Assets at any time on or after the Effective
Date.

     

    Such
indemnity shall not apply if Sunesis fails to comply with the indemnification
procedures set forth in Section 8.4(c) hereof or to the extent that a Claim or
Loss was the result of: (A) a breach by Sunesis of a representation, warranty,
or covenant made or undertaken by Sunesis under this Agreement; (B) the
negligence, recklessness or willful misconduct of Sunesis, any of its
Affiliates, or any of their respective employees or agents; or (C) a matter in
respect of which SARcode is entitled to indemnification under the surviving
provisions of the License Agreement.


    
      
         


      

      
        -15-

        
          

        

      

      
         


      

    

     

    (c)           Control of
Defense.  Any entity entitled to indemnification under this
Section 8.4 shall give written notice to the indemnifying party of any
Claim or Loss that may be subject to indemnification, promptly after learning of
such Claim or Loss (provided that any failure to so notify the indemnifying
party shall only limit the indemnified party’s rights under this
Section 8.4 to the extent that the indemnifying party is materially
prejudiced by such failure), and the indemnifying party shall assume the defense
of the applicable Claim with counsel reasonably satisfactory to the indemnified
party.  The indemnified party shall cooperate with the indemnifying
party in such defense.  The indemnified party may, at its option and
expense, be represented by counsel of its choice in any action or proceeding
with respect to any such Claim or Loss.  The indemnifying party shall
not be liable for any litigation or other costs or expenses incurred by the
indemnified party without the indemnifying party’s written
consent.  The indemnifying party shall not settle any Claim or Loss if
such settlement: (i) does not fully and unconditionally release the indemnified
party from all liability relating thereto; or (ii) adversely impacts the rights
granted to the indemnified party under this Agreement, unless the indemnified
party otherwise agrees in writing.

     

    8.5           Waiver;
Amendment.  Except as otherwise expressly provided in this
Agreement, any term of this Agreement may be waived only by a written instrument
executed by a duly authorized representative of the Party waiving
compliance.  The delay or failure of any Party at any time to require
performance of any provision of this Agreement shall in no manner affect such
Party’s rights at a later time to enforce the same.   No
alteration, amendment, change, or addition to this Agreement will be binding
upon the Parties unless reduced to writing and signed by an authorized officer
of each Party.

     

    8.6           Notices.  Any notice
required or permitted to be given under this Agreement must be in writing, must
specifically refer to this Agreement, and will be deemed to have been
sufficiently given for all purposes if delivered personally or by facsimile
(receipt verified and a copy promptly sent by personal delivery, U.S. first
class mail or express courier providing evidence of receipt, postage prepaid
(where applicable)), or by U.S. first class mail or express courier providing
evidence of receipt, postage prepaid (where applicable), at the following
address or facsimile number for a Party (or such other address or facsimile
number for a Party as may be specified by like notice):

     

    
      	
               
      

            	
              For
      Sunesis:

            	
              Sunesis
      Pharmaceuticals, Inc.

            


    

    
      	
               
      

            	
              395
      Oyster Point Boulevard, Suite 400

            


    

    
      	
               
      

            	
              South
      San Francisco, CA  94080

            


    

    
      	
               
      

            	
              Fax:
      (650) 266-3505

            


    

    
      	
               
      

            	
              Attn:
      General Counsel

            


    

     

    
      	
               
      

            	
              For
      SARcode:

            	
              SARcode
      Corporation

            


    

    
      	
               
      

            	
              343
      Sansome Street, Suite 505

            


    

    
      	
               
      

            	
              San
      Francisco, CA  94104

            


    

    
      	
               
      

            	
              Fax:
      (415) 217-8887

            


    

    
      	
               
      

            	
              Attention:
      Chief Executive Officer

            


    

     

    
      	
               
      

            	
              With
      a Copy to:

            	
              Wilson,
      Sonsini, Goodrich & Rosati, PC

            


    

    
      	
               
      

            	
              650
      Page Mill Road

            


    

    
      	
               
      

            	
              Palo
      Alto, CA  94304

            


    

    
      	
               
      

            	
              Attention:  Kenneth
      A. Clark

            


    

    
      	
               
      

            	
              Facsimile:  (650)
      493-6811

            


    

    
      	
               
      

            	
              Phone:  (650)
      493-9300

            


    


    
      
         


      

      
        -16-

        
          

        

      

      
         


      

    

     

    8.7           No Strict
Construction.  This Agreement has been prepared jointly and
will not be strictly construed against either Party.

     

    8.8           Severability.   If
one (1) or more provisions of this Agreement or any surviving provision of the
License Agreement is held to be invalid, illegal or unenforceable, the Parties
shall substitute, by mutual consent, valid provisions for such invalid, illegal
or unenforceable provisions which valid provisions are, in their economic
effect, sufficiently similar to the invalid provisions that it can be reasonably
assumed that the Parties would have entered into this Agreement with such
provisions.  In the event that such provisions cannot be agreed upon,
the invalidity, illegality or unenforceability of one (1) or more provisions of
this Agreement or any surviving provision of the License Agreement shall not
affect the validity of this Agreement as a whole, unless the invalid provisions
are of such essential importance to this Agreement that it is to be reasonably
assumed that the Parties would not have entered into this Agreement without such
invalid provisions.

     

    8.9           Interpretation.  The
headings for each article and section in this Agreement have been inserted for
convenience of reference only and are not intended to affect its meaning or
interpretation.  In this Agreement: (a) the word “including”
(including any variations such as “includes”) shall be deemed to be followed by
the phrase “without limitation” or like expression; (b) the singular shall
include the plural and vice
versa; and (c) masculine, feminine, and neuter pronouns and expressions
shall be interchangeable.

     

    8.10           Further
Actions.  Each Party agrees to execute, acknowledge, and
deliver any further instruments, and to do all other acts, as may be necessary
or appropriate to carry out the purposes and intent of this
Agreement.

     

    8.11           Independent
Contractors.  The relationship between SARcode and Sunesis
created by this Agreement is one of independent contractors and shall not
constitute or be deemed to constitute a partnership, joint venture, agency, or
other fiduciary relationship.  Neither Party shall have the authority
to make any statements, representations, or commitments of any kind, or to take
any action, that shall be binding on the other Party, without the prior written
consent of the other Party to do so.

     

    8.12           Use of Name.  Except
as may be permitted pursuant to Section 7.2 of this Agreement, no right, express
or implied, is granted to either Party by this Agreement to use in any manner
any trademark, trade name, or logo of the other Party, including the names
“Sunesis” and “SARcode,” without the prior written consent of the owning
Party.

     

    8.13           Limitation of
Liability.  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER HEREUNDER FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL
DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, ARISING FROM OR RELATING TO
ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH
DAMAGES.  NOTHING IN THIS SECTION IS INTENDED TO LIMIT EITHER PARTY’S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.4 TO THE EXTENT A THIRD PARTY
RECOVERS ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES
FROM AN INDEMNIFIED PARTY.


    
      
         


      

      
        -17-

        
          

        

      

      
         


      

    

     

    8.14           Counterparts.  This
Agreement may be executed in counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same
instrument.

     

    [Remainder
of this page intentionally left blank; signature page follows]


    
      
         


      

      
        -18-

        
          

        

      

      
         


      

    

     

    In
Witness Whereof, the Parties have executed this Intellectual Property
Assignment and License Termination Agreement as of the Effective
Date.

    


    
      
        	
                Sunesis Pharmaceuticals, Inc.

              	 
      	
                SARcode Corporation

              
	 
      	 
      	 
      	 
      	 
      
	
                By:

              	
                /s/ Eric Bjerkholt

              	 
      	
                By:

              	
                /s/ Tom Gadek

              
	 
      	 
      	 
      	 
      	 
      
	
                Print Name:

              	
                Eric Bjerkholt

              	 
      	
                Print Name:

              	
                Tom Gadek

              
	 
      	 
      	 
      	 
      	 
      
	
                Title:

              	
                Sr. VP & CFO

              	 
      	
                Title:

              	
                CEO

              


      

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    EXHIBIT
1.7

     

    LFA-1
Antagonist Criteria

     

    An LFA-1
Antagonist must have at least two of the three properties below in either the
presence or absence of serum.

     

    < 250
nM IC50 in LFA-1/ICAM-1 Elisa

     

    < 250
nM IC50 in Hut78 cell adhesion to ICAM-1 coated plate

     

    < 250
nM IC50 in Mixed Lymphocyte Response  assay of Lymphocyte
proliferation

     

    These
assay protocols are as described in the Sunesis patent application no. WO
2005/044817 A1, pages 145-150.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    EXHIBIT
1.9

     

    LFA-1
Records

     

    The
Sunesis LFA-1 Records include the following:

     

    1.           Documents
created during the normal course of discovery research and filed on the Sunesis’
electronic server or otherwise included in Sunesis’ corporate or research
records pertaining to or embodying any of the Sunesis LFA-1 Know-How and/or
Sunesis LFA-1 Patents and falling into the following categories:

     

    (a)           Meeting
agendas and minutes;

     

    (b)           In
Vitro assay data;

     

    (c)           Biology
protocols;

     

    (d)           Chemistry;

     

    (e)           Literature;

     

    (f)           Chemistry
structure activity relationship data;

     

    (g)           Project
reports;

     

    (h)           Pharmacology
data;

     

    (i)           Company
presentations;

     

    (j)           Project
management historical files;

     

    (k)           Manuscripts;

     

    2.           Excel
Spreadsheet(s) representing a complete download of data related to the Sunesis
LFA-1 Know-How from Sunesis’ corporate database known internally at Sunesis as
RS3;

     

    3.           Laboratory
notebooks which contain data related to the Sunesis LFA-1 Know-How and/or
Sunesis LFA-1 Patents;

     

    4.           Electronic
files representing spectral data for compounds referenced in RS3;
and

     

    5.           Sunesis’
legal records pertaining to or embodying any of the Sunesis LFA-1 Patents and/or
Sunesis LFA-1 Know-How, including file histories of Sunesis LFA-1 Patents and
additional relevant documents.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    EXHIBIT
1.16

     

    Sunesis
LFA-1 Know-How

     

    The
Sunesis LFA-1 Know-How includes the following Know-How, copies and/or
embodiments of some of which may have been provided to SARcode during the term
of the License Agreement:

     

    1.           Documents Related to the
LFA-1 Program

     

    (a)           Reports
and data from Sunesis’ internal research activities (including, reports and data
relating to  chemical compound synthesis, chemical compound
purification, building block synthesis, pharmacology; pharmacokinetics,
toxicology, etc.);

     

    (b)          Reports
and data from contract research organizations (“CROs”) performing research work
for Sunesis ( chemical compound synthesis,  chemical compound
purification, building block synthesis, pharmacology, pharmacokinetics,
toxicology, etc.);

     

    (c)           Documents
and presentations assembled for meetings with other potential
licensees;

     

    (d)          Complete
prosecution files for the Sunesis LFA-1 Patents;

     

    (e)           Key
LFA compounds (where samples exist); and

     

    (f)           Intermediates.

     

    2.           Proprietary Biological
Reagents for Assays and Experiments

     

    (a)           All
standard operating procedures (“SOPs”) for biological assays and
experiments;

     

    (b)          SOPs
for LCMS detection;

     

    (c)           Formulations
for in vivo testing;

     

    (d)          Pharmacokinetic
evaluation in rat and other species from Sunesis and CROs;

     

    (e)           Experimental
protocols for the synthesis of compounds at Sunesis and CROs;

     

    (f)           HPLC
methods for preparative purification of synthetic compounds;

     

    (g)          Electronic
databases correlating compound structure, synthesis, date of synthesis and
purification, biological activity in binding assay(s), cell based assays,
pharmacokinetic evaluation in vivo, in vitro metabolism, serum protein binding,
etc.;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (h)          Electronic
and paper files regarding the pharmacokinetic evaluation of
compounds;

     

    (i)           Electronic
and paper files and data on the stability and formulation of
compounds;

     

    (j)           Electronic
and paper files and data on the activity of compounds in whole human
blood;

     

    (k)          Electronic
and paper files and data on LFA-1 Binding assays, affinity, pharmacokinetics and
pharmacodynamics;

     

    (l)           Electronic
and paper files and plans on LFA-1 antagonist preclinical development, clinical
development; and

     

    (m)         Copies
of Sunesis program presentations to staff, management and
consultants


    
      
         


      

      
        -2-

        
          

        

      

      
         


      

    


    EXHIBIT
1.17

     

    Sunesis
LFA-1 Patents

    


    
      
        	
                Country

              	 
      	
                Appln No.

              	 
      	
                Filed

              	 
      	
                Publn No.

              	 
      	
                Published

              	 
      	
                Patent No.

              	 
      	
                Granted

              	 
      	
                Status

              
	
                US

              	 
      	
                60/372,672

              	 
      	
                15-Apr-02

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                60/390,527

              	 
      	
                21-Jun-02

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                60/462,640

              	 
      	
                14-Apr-03

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                60/517,535

              	 
      	
                5-Nov-03

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                60/560,517

              	 
      	
                8-Apr-04

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                10/982,463

              	 
      	
                5-Nov-04

              	 
      	
                2005-0267098

              	 
      	
                1-Dec-05

              	 
      	
                7,314,938

              	 
      	
                1-Jan-08

              	 
      	
                Granted

              
	
                US

              	 
      	
                11/978,388

              	 
      	
                29-Oct-07

              	 
      	
                2008-0176896

              	 
      	
                24-Jul-08

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                US

              	 
      	
                11/934,049

              	 
      	
                1-Nov-07

              	 
      	
                2008-0182839

              	 
      	
                31-Jul-08

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                PCT

              	 
      	
                PCT/US04/36942

              	 
      	
                5-Nov-04

              	 
      	
                WO 2005/044817

              	 
      	
                19-May-05

              	 
      	 
      	 
      	 
      	 
      	
                Nat'l Phase

              
	
                Australia

              	 
      	
                2004287875

              	 
      	
                5-Nov-04

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                Canada

              	 
      	
                2,544,678

              	 
      	
                5-Nov-04

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                China

              	 
      	
                0480039802.8

              	 
      	
                5-Nov-04

              	 
      	
                1902195A

              	 
      	
                24-Jan-07

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                EPO

              	 
      	
                04810406.1

              	 
      	
                5-Nov-04

              	 
      	
                1682537

              	 
      	
                26-Jul-06

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                Hong Kong

              	 
      	
                07102904.4

              	 
      	
                19-Mar-07

              	 
      	
                1095815

              	 
      	
                18-May-07

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                India

              	 
      	
                1233/KOLNP

              	 
      	
                5-Nov-04

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                Japan

              	 
      	
                06-539668

              	 
      	
                5-Nov-04

              	 
      	
                2007-513081

              	 
      	
                24-May-07

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              


      

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    EXHIBIT 3.2

     

    Form
of Amended and Restated Promissory Note


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    EXHIBIT
5.1

     

    Form
of Assignment

    


    
      
        
          
            	
                    PATENT
      ASSIGNMENT

                  	
                    Docket
      Number      [__________]

                     

                  


          

        

      

    

    WHEREAS,
Sunesis  Pharmaceuticals, Inc., a Delaware corporation (hereinafter
“Assignor”), owns the patents and applications set forth on Annex A
hereto;

     

    WHEREAS,
SARcode Corporation, a Delaware corporation, having a place of business at 343
Sansome Street, Suite 505, San Francisco, CA 94104, (hereinafter “Assignee”) and
Assignor are parties to that certain Intellectual Property Assignment and
License Termination Agreement dated as of March 6, 2009 (the “Acquisition
Agreement”), pursuant to which Assignor has agreed to assign, and Assignee has
agreed to acquire, all the right, title and interest in and to the patents and
patent applications set forth on Annex A, and all patents and patent
applications filed by Assignee claiming any Sunesis LFA-1 Know-How and/or any
other Sunesis LFA-1 Intellectual Property (as such capitalized terms are defined
in the Acquisition Agreement) together with all additions, divisions,
continuations, continuations-in-part, substitutions, reissues, re-examinations,
extensions, registrations, patent term extensions, supplemental protection
certificates, renewals, and the like with respect to any of the foregoing
(collectively, the “Patents”).

     

    NOW,
THEREFORE, in consideration of good and valuable consideration acknowledged by
said Assignor to have been received in full from said Assignee:

     

    1.           Said
Assignor does hereby sell, assign, transfer and convey unto said Assignee its
entire right, title and interest (a) in and to said Patents, including the
right to claim priority to said Patents, and including all Patents filed in the
United States and corresponding non-United States Patent(s), including those
filed under the Paris Convention for the Protection of Industrial Property, The
Patent Cooperation Treaty, or otherwise; (b) in and to any and all
Patent(s) granted on applications in the Patents in the United States, in any
foreign country, or under any international convention, agreement, protocol, or
treaty, including each and every application filed and any and all Patent(s)
granted on any application which is a divisional, substitution, continuation, or
continuation-in-part of any of Patent; and (c) in and to each and every
reissue, reexamination, or extensions of any of said Patent(s).

     

    2.           Assignor
hereby covenants and agrees to provide to Assignee, and/or its designee, as
reasonably requested by Assignee and at Assignee’s expense (including reasonable
attorney’s fees and other reasonable legal expenses), full cooperation and
assistance (including the execution and delivery of any and all affidavits,
declarations, oaths, exhibits, assignments, powers of attorney, or other
documentation as may be reasonably required): (i) in order to allow Assignee to
apply for, register, obtain, maintain, defend, and enforce the Patents and/or
its rights therein, in any and all countries; (ii) in connection with the
prosecution or defense of any interference, opposition, re-examination, reissue,
infringement, declaratory judgment, or other judicial or legal administrative
proceedings that may arise in connection with any such Patents (including the
validity and/or enforceability thereof) (including testifying as to any facts,
production of any documents, responses to any requests or demands relating to
any such Patents); and/or (iii) in order to perfect the delivery, assignment,
and conveyance to Assignee, its successors, assigns, and nominees, of the entire
right, title, and interest in and to any and all Patents.

     

    3.           Without
limiting Section 2 above, Assignor agrees that, if Assignee (and/or its
designee) is unable to secure the signature of Assignor, or any of its relevant
current or former employees and/or contractors after using reasonable efforts to
do so (including providing written notice to Assignor or such employee or
contractor, as applicable), that Assignee may deem reasonably necessary or
useful in order to allow Assignee to apply for, register, obtain, maintain,
defend, and enforce the Patents and/or its rights therein or to conduct any of
the other activities described in Section 2 above, then Assignor hereby
irrevocably designates and appoints Assignee and its duly authorized officers
and agents as Assignor’s agent and attorney-in-fact, to act for and on
Assignor’s behalf to execute and file any papers and oaths and to do all other
lawfully permitted acts with respect to such rights (including the authority to
exercise any grant of agency or power of attorney that Assignor may hold or have
been granted, including by Assignor’s relevant current or former employees
and/or contractors) to further the prosecution, issuance, maintenance and
enforcement of such Patents with the same legal force and effect as if executed
by Assignor or such employee or contractor, as applicable. This power of
attorney shall be deemed coupled with an interest, and shall be
irrevocable.

     

    4.           The
terms and covenants of this assignment shall inure to the benefit of said
Assignee, its successors, assigns and other legal representatives, and shall be
binding upon the Assignor, its successors, assigns and other legal
representatives.

     

    5.           Said
Assignor hereby warrants and represents that the Assignor has not entered and
will not enter into any assignment, contract, or understanding in conflict
herewith.

     

    6.           Said
Assignor hereby requests that any Patent(s) issuing in the United States,
foreign countries, or under any international convention, agreement, protocol,
or treaty, be issued in the name of the Assignee, or its successors and assigns,
for the sole use of said Assignee, its successors, legal representatives and
assigns.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, said Assignor has executed and delivered this instrument to
said Assignee as of the date written below.

     

    
      
        
          
            
              	 
      	
                      SUNESIS
      PHARMACEUTICALS, INC.

                    
	 
      	 
      	 
      
	
                      Date:                                 
      

                    	
                      By:

                    	 
      
	 
      	 
      	
                      Name:

                    
	 
      	 
      	
                      Title:

                    
	 
      	 
      	 
      
	
                      RECEIVED
      AND AGREED TO BY SARCODE CORPORATION:

                    
	 
      
	
                      Date:                                 
      

                    	
                      By:

                    	 
      
	 
      	 
      	
                      Name:

                    
	 
      	 
      	
                      Title:

                    


            

          

        

      

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    ANNEX A

    


    
      
        	
                Country

              	 
      	
                Appln No.

              	 
      	
                Filed

              	 
      	
                Publn No.

              	 
      	
                Published

              	 
      	
                Patent No.

              	 
      	
                Granted

              	 
      	
                Status

              
	
                US

              	 
      	
                60/372,672

              	 
      	
                15-Apr-02

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                60/390,527

              	 
      	
                21-Jun-02

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                60/462,640

              	 
      	
                14-Apr-03

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                60/517,535

              	 
      	
                5-Nov-03

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                60/560,517

              	 
      	
                8-Apr-04

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Expired

              
	
                US

              	 
      	
                10/982,463

              	 
      	
                5-Nov-04

              	 
      	
                2005-0267098

              	 
      	
                1-Dec-05

              	 
      	
                7,314,938

              	 
      	
                1-Jan-08

              	 
      	
                Granted

              
	
                US

              	 
      	
                11/978,388

              	 
      	
                29-Oct-07

              	 
      	
                2008-0176896

              	 
      	
                24-Jul-08

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                US

              	 
      	
                11/934,049

              	 
      	
                1-Nov-07

              	 
      	
                2008-0182839

              	 
      	
                31-Jul-08

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                PCT

              	 
      	
                PCT/US04/36942

              	 
      	
                5-Nov-04

              	 
      	
                WO 2005/044817

              	 
      	
                19-May-05

              	 
      	 
      	 
      	 
      	 
      	
                Nat'l Phase

              
	
                Australia

              	 
      	
                2004287875

              	 
      	
                5-Nov-04

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                Canada

              	 
      	
                2,544,678

              	 
      	
                5-Nov-04

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                China

              	 
      	
                0480039802.8

              	 
      	
                5-Nov-04

              	 
      	
                1902195A

              	 
      	
                24-Jan-07

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                EPO

              	 
      	
                04810406.1

              	 
      	
                5-Nov-04

              	 
      	
                1682537

              	 
      	
                26-Jul-06

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                Hong Kong

              	 
      	
                07102904.4

              	 
      	
                19-Mar-07

              	 
      	
                1095815

              	 
      	
                18-May-07

              	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                India

              	 
      	
                1233/KOLNP

              	 
      	
                5-Nov-04

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                Pending

              
	
                Japan

              	 
      	
                06-539668

              	 
      	
                5-Nov-04

              	 
      	
                2007-513081

              	 
      	
                24-May-07

              	 
      	 
      	 
      	 
      	 
      	
                Pending