ALL OF
THE BUSINESS OR ASSETS OF SUCH PARTY TO WHICH THE SUBJECT MATTER OF THIS
AGREEMENT PERTAINS (WHETHER BY MERGER, REORGANIZATION, ACQUISITION, SALE OR
OTHERWISE), AND (B) REGULUS MAY ASSIGN OR TRANSFER ITS RIGHTS TO RECEIVE
ROYALTIES AND MILESTONES UNDER THIS AGREEMENT (BUT NO LIABILITIES), WITHOUT
GSK'S CONSENT, TO AN AFFILIATE, TO ITS FOUNDING COMPANY, OR TO A THIRD PARTY IN
CONNECTION WITH A PAYMENT FACTORING TRANSACTION.
NOTWITHSTANDING THE FOREGOING,
EACH PARTY SHALL HAVE THE RIGHT TO ASSIGN THIS AGREEMENT, IN WHOLE OR IN PART,
TO ITS AFFILIATE OR FOUNDING COMPANY, IN THE CASE OF REGULUS,
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WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED, THAT, SUCH
ASSIGNEE IS ABLE TO EXERCISE DILIGENT EFFORTS EQUIVALENT TO THOSE REQUIRED TO BE
EXERCISED BY SUCH ASSIGNING PARTY AND OTHERWISE PERFORM ALL OF THE OBLIGATIONS
OF THE ASSIGNING PARTY HEREUNDER AND ASSUMES IN WRITING ALL OF THE RELEVANT
LIABILITIES AND OBLIGATIONS OF THE ASSIGNING PARTY HEREUNDER.
NO ASSIGNMENT AND
TRANSFER SHALL BE VALID AND EFFECTIVE UNLESS AND UNTIL THE ASSIGNEE/TRANSFEREE
SHALL AGREE IN WRITING TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING IN THIS SECTION 11.3 TO THE CONTRARY, ANY PERSON TO
WHOM REGULUS ASSIGNS THIS AGREEMENT OR ANY OF ITS RIGHTS UNDER THIS AGREEMENT
SHALL BE REQUIRED TO COMPLETE ANY PAPERWORK REQUESTED BY GSK PURSUANT TO
SECTION 5.11.2;
SUCH OBLIGATIONS SHALL CONTINUE TO ANY OTHER
PERSON(S) THEREAFTER, IF ANY, TO WHOM THIS AGREEMENT AND ANY RIGHTS HEREUNDER
ARE ASSIGNED. THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL BE BINDING UPON
AND SHALL INURE TO THE BENEFIT OF THE SUCCESSORS, HEIRS, ADMINISTRATORS AND
PERMITTED ASSIGNS OF THE PARTIES.
ANY ASSIGNMENT NOT IN ACCORDANCE WITH THE
FOREGOING SHALL BE VOID.
11.4
PERFORMANCE WARRANTY.
EACH PARTY HEREBY ACKNOWLEDGES AND AGREES
THAT IT SHALL BE RESPONSIBLE FOR THE FULL AND TIMELY PERFORMANCE AS AND WHEN DUE
UNDER, AND OBSERVANCE OF ALL THE COVENANTS, TERMS, CONDITIONS AND AGREEMENTS SET
FORTH IN, THIS AGREEMENT BY ITS AFFILIATE(S) AND SUBLICENSEES.
11.5
FORCE MAJEURE.
NO PARTY SHALL BE HELD LIABLE OR RESPONSIBLE TO THE
OTHER PARTY NOR BE DEEMED TO BE IN DEFAULT UNDER, OR IN BREACH OF ANY PROVISION
OF, THIS AGREEMENT FOR FAILURE OR DELAY IN FULFILLING OR PERFORMING ANY
OBLIGATION OF THIS AGREEMENT WHEN SUCH FAILURE OR DELAY IS DUE TO FORCE MAJEURE,
AND WITHOUT THE FAULT OR NEGLIGENCE OF THE PARTY SO FAILING OR DELAYING.
FOR
PURPOSES OF THIS AGREEMENT, FORCE MAJEURE IS DEFINED AS CAUSES BEYOND THE
REASONABLE CONTROL OF A PARTY, WHICH MAY INCLUDE, WITHOUT LIMITATION, ACTS OF
GOD; ACTS, REGULATIONS, OR LAWS OF ANY GOVERNMENT; WAR; CIVIL COMMOTION;
DESTRUCTION OF PRODUCTION FACILITIES OR MATERIALS BY FIRE, FLOOD, EARTHQUAKE,
EXPLOSION OR STORM; LABOR DISTURBANCES; EPIDEMIC AND FAILURE OF PUBLIC UTILITIES
OR COMMON CARRIERS.
IN SUCH EVENT THE PARTY SO FAILING OR DELAYING SHALL
IMMEDIATELY NOTIFY THE OTHER PARTY OF SUCH INABILITY AND OF THE PERIOD FOR WHICH
SUCH INABILITY IS EXPECTED TO CONTINUE.
THE PARTY GIVING SUCH NOTICE SHALL
THEREUPON BE EXCUSED FROM SUCH OF ITS OBLIGATIONS