OF SUCH
PARTY.
THE FAILURE
58
OF ANY PARTY HERETO TO ENFORCE AT ANY TIME ANY PROVISION OF THIS AGREEMENT SHALL
NOT BE CONSTRUED TO BE A WAIVER OF SUCH PROVISION, NOR IN ANY WAY TO AFFECT THE
VALIDITY OF THIS AGREEMENT OR ANY PART HEREOF OR THE RIGHT OF ANY PARTY
THEREAFTER TO ENFORCE EACH AND EVERY SUCH PROVISION.
NO WAIVER OF ANY BREACH OF
THIS AGREEMENT SHALL BE HELD TO CONSTITUTE A WAIVER OF ANY OTHER OR SUBSEQUENT
BREACH.
8.9.
EXPENSES.
SUBJECT TO SECTION 5.3(D)(IV), EACH
PARTY HERETO WILL PAY ALL COSTS AND EXPENSES INCIDENT TO ITS NEGOTIATION AND
PREPARATION OF THIS AGREEMENT AND TO ITS PERFORMANCE AND COMPLIANCE WITH ALL
AGREEMENTS AND CONDITIONS CONTAINED HEREIN ON ITS PART TO BE PERFORMED OR
COMPLIED WITH, INCLUDING THE FEES, EXPENSES AND DISBURSEMENTS OF ITS COUNSEL AND
ACCOUNTANTS.
8.10.
EXECUTION IN COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN MULTIPLE COUNTERPARTS, EACH OF WHICH SHALL BE CONSIDERED AN ORIGINAL
INSTRUMENT, BUT ALL OF WHICH SHALL BE CONSIDERED ONE AND THE SAME AGREEMENT, AND
SHALL BECOME BINDING WHEN ONE OR MORE COUNTERPARTS HAVE BEEN SIGNED BY EACH OF
THE PARTIES HERETO AND DELIVERED TO THE OTHER PARTY.
DELIVERY OF AN EXECUTED
COUNTERPART OF A SIGNATURE PAGE TO THIS AGREEMENT SHALL BE AS EFFECTIVE AS
DELIVERY OF A MANUALLY EXECUTED COUNTERPART OF THIS AGREEMENT.
8.11.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (EXCLUDING THE CONFLICTS OF
LAW PROVISIONS) OF THE STATE OF DELAWARE.
8.12.
SUBMISSION TO JURISDICTION.
THE COMPANY AND
OPTIONEE HEREBY IRREVOCABLY SUBMIT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF DELAWARE AND THE JURISDICTION OF ANY COURT OF THE STATE OF DELAWARE
LOCATED IN WILMINGTON, DELAWARE AND WAIVE ANY AND ALL OBJECTIONS TO JURISDICTION
THAT THEY MAY HAVE UNDER THE LAWS OF THE STATE OF DELAWARE OR THE UNITED STATES.
8.13.
WAIVER OF JURY TRIAL.
EACH OF OPTIONEE AND THE
COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
OPTIONEE OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
[Remainder of page intentionally left blank; signature page follows.]
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
CEPHALON, INC.
By:
/s/ J. Kevin Buchi
Name:
J. Kevin Buchi
Title:
Executive Vice President and Chief Financial Officer
CEPTION THERAPEUTICS, INC.
By:
/s/ Stephen A. Tullman
Name:
Stephen A. Tullman
Title:
President and CEO
Option Agreement