THE OTHER
TRANSACTION AGREEMENTS REFERRED TO HEREIN OR DELIVERED PURSUANT HERETO,
SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS BETWEEN THE PARTIES WITH
RESPECT TO SUCH SUBJECT MATTER.
11.11
FURTHER ASSURANCES.
SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, FROM TIME TO TIME AFTER THE CLOSING, THE COMPANY
AND THE PURCHASER AGREE TO COOPERATE WITH EACH OTHER, AND AT THE REQUEST OF THE
OTHER PARTY, TO EXECUTE AND DELIVER ANY FURTHER INSTRUMENTS OR DOCUMENTS AND
TAKE ALL SUCH FURTHER ACTION AS THE OTHER PARTY MAY REASONABLY REQUEST IN ORDER
TO EVIDENCE OR EFFECTUATE THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY
THE TRANSACTION AGREEMENTS AND TO OTHERWISE CARRY OUT THE INTENT OF THE PARTIES
HEREUNDER.
11.12
PUBLIC ANNOUNCEMENTS.
EXCEPT AS REQUIRED BY ANY
REQUIREMENT OF LAW OR THE RULES OF ANY SECURITIES EXCHANGE, NONE OF THE PARTIES
HERETO WILL ISSUE OR MAKE ANY REPORTS, STATEMENTS OR RELEASES TO THE PUBLIC WITH
RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
AGREEMENTS WITHOUT THE APPROVAL OF THE OTHER PARTY (SUCH APPROVAL NOT TO BE
UNREASONABLY WITHHELD OR DELAYED).
11.13
SPECIFIC PERFORMANCE.
THE PARTIES ACKNOWLEDGE THAT
MONEY DAMAGES ARE NOT AN ADEQUATE REMEDY FOR VIOLATIONS OF THIS AGREEMENT AND
THAT ANY PARTY MAY, IN ITS SOLE DISCRETION, APPLY TO A COURT OF COMPETENT
JURISDICTION FOR SPECIFIC PERFORMANCE OR INJUNCTIVE OR SUCH OTHER RELIEF AS SUCH
COURT MAY DEEM JUST AND PROPER IN ORDER TO ENFORCE THIS AGREEMENT OR PREVENT ANY
VIOLATION HEREOF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY
WAIVES ANY OBJECTION TO THE IMPOSITION OF SUCH RELIEF OR ANY REQUIREMENT FOR A
BOND.
*CONFIDENTIAL TREATMENT REQUESTED
51
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective officers hereunto duly authorized as of the
date first above written.
ACUSPHERE, INC.
By:
/s/ Lawrence A. Gyenes
Name: Lawrence A. Gyenes
Title: Senior Vice President, CFO and Secretary
CEPHALON, INC.
By:
/s/ J. Kevin Buchi
Name:J. Kevin Buchi
Title: Executive Vice President and Chief Financial
Officer
*CONFIDENTIAL TREATMENT REQUESTED
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Assignment") is dated as of November [
],
2008, by and between CEPHALON, INC., a Delaware corporation (the "Purchaser"),
and ACUSPHERE, INC., a Delaware corporation (the "Company"). Capitalized terms
used and not otherwise defined herein are used as defined in the Purchase
Agreement (as defined below).
Reference is hereby made to that certain Note Purchase Agreement, dated as
October 24, 2008 (the "Purchase Agreement"), by and between the Purchaser and
the Company.
1.
Upon the Closing, the Company hereby sells, assigns, transfers
and otherwise conveys to the Purchaser all right, title and interest in and to
the Contracts, documents and correspondence listed on Schedule I attached hereto
and the Product Clinical Data (as defined in the Celecoxib License Agreement
(the "Assigned Property")) and free and clear of all Liens;
2.
The Company covenants and agrees, at the cost and