Exhibit 10.2
LICENSE AGREEMENT
This agreement (the "Agreement"), dated the 28th day of March 2008 (the
"Effective Date"), is by and between Cephalon, Inc., a Delaware corporation
("Cephalon"), and Acusphere, Inc., a Delaware corporation ("Acusphere").
INTRODUCTION
1.
Acusphere owns the Licensed Patent
Rights and the Licensed Know-How.
2.
Cephalon is in the business of
developing and marketing pharmaceutical products.
3.
Acusphere and Cephalon are interested
in establishing a licensing relationship pursuant to which Acusphere shall grant
Cephalon certain rights and licenses under the Licensed Patent Rights and
Licensed Know-How.
NOW, THEREFORE, Cephalon and Acusphere agree as follows:
Article I
DEFINITIONS
When used in this Agreement, each of the following terms shall have the meanings
set forth in this Article I:
SECTION 1.1
"AFFILIATE".
AFFILIATE MEANS,
WITH RESPECT TO A PARTY, ANY PERSON THAT CONTROLS, IS CONTROLLED BY, OR IS UNDER
COMMON CONTROL WITH SUCH PARTY.
FOR PURPOSES OF THIS SECTION 1.1, "CONTROL"
SHALL REFER TO (A) IN THE CASE OF A PERSON THAT IS A CORPORATE ENTITY, DIRECT OR
INDIRECT OWNERSHIP OF FIFTY PERCENT (50%) OR MORE OF THE STOCK OR SHARES HAVING
THE RIGHT TO VOTE FOR THE ELECTION OF DIRECTORS OF SUCH PERSON AND (B) IN THE
CASE OF A PERSON THAT IS NOT A CORPORATE ENTITY, THE POSSESSION, DIRECTLY OR
INDIRECTLY, OF THE POWER TO DIRECT, OR CAUSE THE DIRECTION OF, THE MANAGEMENT OR
POLICIES OF SUCH PERSON, WHETHER THROUGH THE OWNERSHIP OF VOTING SECURITIES, BY
CONTRACT OR OTHERWISE.
SECTION 1.2
"AI-850TM".
AI-850TM MEANS A
PHARMACEUTICAL FORMULATION OF THE ACTIVE INGREDIENT PACLITAXEL, WHICH UTILIZES
HDDS TECHNOLOGYTM, AS DESCRIBED IN INVESTIGATIONAL NEW DRUG APPLICATION ("IND")
#63817 .
SECTION 1.3
"AI-850TM CLINICAL DATA".
AI-850TM CLINICAL DATA MEANS ALL PRE-CLINICAL AND CLINICAL DATA AND DATABASES
RELATING TO AI-850TM, INCLUDING WITHOUT LIMITATION, RAW CASE REPORT FILES, FINAL
STUDY REPORTS, TOXICOLOGY REPORTS, REGULATORY INFORMATION INCLUDING IND #63817,
AND SUCH OTHER INFORMATION AND DATA AS MAY HAVE BEEN GENERATED DURING OR IN
CONNECTION WITH THE PRE-CLINICAL AND PHASE I CLINICAL STUDIES CONDUCTED ON
AI-850TM.
SECTION 1.4
"BANKRUPTCY CODE".
BANKRUPTCY
CODE MEANS 11 U.S.C §§ 101-1330, AS AMENDED.
1
SECTION 1.5
"CONFIDENTIAL INFORMATION".
CONFIDENTIAL INFORMATION MEANS NON-PUBLIC INFORMATION DISCLOSED BY ACUSPHERE TO
CEPHALON RELATING TO THE LICENSED KNOW-HOW AND AI-850TM, BUT EXCLUDING THE
AI-850TM CLINICAL DATA.
SECTION 1.6
"CONTROL".
CONTROL AND
COGNATES THEREOF MEANS, WITH RESPECT TO ANY LICENSED KNOW-HOW, PATENT RIGHTS OR
CONFIDENTIAL INFORMATION, THE POSSESSION BY A PARTY, WHETHER DIRECTLY OR THROUGH
AFFILIATES OF SUCH PARTY, OF THE ABILITY TO GRANT THE RIGHT TO ACCESS OR USE, OR
TO GRANT A LICENSE OR THE RIGHT TO DISCLOSE OR TRANSFER SUCH LICENSED KNOW-HOW,
PATENT RIGHTS OR CONFIDENTIAL INFORMATION, WITHOUT VIOLATING THE TERMS OF ANY
AGREEMENT OR OTHER WRITTEN ARRANGEMENT WITH, OR THE RIGHTS OF ANY THIRD PARTY.
SECTION 1.7
"COVER".
COVER AND COGNATES
THEREOF MEANS, WITH RESPECT TO A PRODUCT, THAT, BUT FOR A LICENSE GRANTED TO A
PARTY UNDER A VALID CLAIM, THE DEVELOPMENT OR COMMERCIALIZATION OF SUCH PRODUCT
WOULD INFRINGE SUCH VALID CLAIM.
SECTION 1.8
"FIELD".
FIELD MEANS ONCOLOGY
THERAPEUTICS.