TO ACCOMPLISH THE
FOREGOING.
J.
THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT MAY NOT BE ASSIGNED OR TRANSFERRED (AND ANY ATTEMPT
TO DO SO WILL BE VOID) EXCEPT (I) RIGHTS TO RECEIVE MONEY MAY BE ASSIGNED, AND
(II) THIS AGREEMENT AND IMCOR'S RIGHTS AND OBLIGATIONS HEREUNDER MAY BE ASSIGNED
BY IMCOR TO AN ACQUIROR DIRECTLY OR INDIRECTLY OF ALL OR SUBSTANTIALLY ALL THE
IMAGENT ASSETS OR RELATED RIGHTS.
K.
HEADINGS AND CAPTIONS ARE FOR CONVENIENCE
ONLY AND ARE NOT TO BE USED IN THE INTERPRETATION OF THIS AGREEMENT.
L.
THIS AGREEMENT CONTAINS THE ENTIRE
AGREEMENT OF THE PARTIES CONCERNING THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL
PROPOSALS, ORAL OR WRITTEN, ALL NEGOTIATIONS, CONVERSATIONS, OR DISCUSSIONS
BETWEEN OR AMONG THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT
AND ALL PAST DEALING OR INDUSTRY CUSTOM.
15
M.
NEITHER PARTY HERETO SHALL BE RESPONSIBLE FOR
ANY FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN
OBLIGATIONS TO PAY MONEY OR OBLIGATIONS UNDER SECTION 12) IF SUCH FAILURE IS
CAUSED BY ACTS OF GOD, WAR, STRIKES, REVOLUTIONS, LACK OR FAILURE OF
TRANSPORTATION FACILITIES, LAWS OR GOVERNMENTAL REGULATIONS OR OTHER CAUSES THAT
ARE BEYOND THE REASONABLE CONTROL OF SUCH PARTY. OBLIGATIONS HEREUNDER, HOWEVER,
SHALL IN NO EVENT BE EXCUSED BUT SHALL BE SUSPENDED ONLY UNTIL THE CESSATION OF
ANY CAUSE OF SUCH FAILURE. IN THE EVENT THAT SUCH FORCE MAJEURE SHOULD OBSTRUCT
PERFORMANCE OF THIS AGREEMENT FOR MORE THAN SIX (6) MONTHS, THE PARTIES HERETO
SHALL CONSULT WITH EACH OTHER TO DETERMINE WHETHER THIS AGREEMENT SHOULD BE
MODIFIED. THE PARTY FACING AN EVENT OF FORCE MAJEURE SHALL USE ITS BEST
REASONABLE ENDEAVORS IN ORDER TO REMEDY THAT SITUATION AS WELL AS TO MINIMIZE
ITS EFFECTS. A CASE OF FORCE MAJEURE SHALL BE NOTIFIED TO THE OTHER PARTY BY
TELEFAX WITHIN FIVE (5) DAYS AFTER ITS OCCURRENCE AND SHALL BE CONFIRMED BY A
LETTER.
N.
EACH PARTY SHALL COMPLY WITH ALL
APPLICABLE EXPORT LAWS, RESTRICTIONS, AND REGULATIONS OF THE UNITED STATES AND
JAPAN OR ANY AUTHORITY THEREUNDER AND WILL NOT EXPORT OR RE-EXPORT, ANY PRODUCT,
TECHNOLOGY OR INFORMATION IT OBTAINS OR LEARNS PURSUANT TO THIS AGREEMENT (OR
ANY DIRECT PRODUCT THEREOF) IN VIOLATION OF ANY SUCH LAWS, RESTRICTIONS OR
REGULATIONS.
O.
EACH PARTY RECOGNIZES THAT IMCOR GRANTS NO
LICENSE, BY IMPLICATION OR OTHERWISE, EXCEPT FOR THE LICENSES EXPRESSLY SET
FORTH AND GRANTED IN THIS AGREEMENT.
P.
IMCOR SHALL NOT ENTER INTO ANY MERGER OR
ANY TRANSACTION INVOLVING THE SALE] OF ALL OR SUBSTANTIALLY ALL OF ITS ASSETS
(INCLUDING IMAGENT) UNLESS THE SURVIVING ENTITY TO SUCH MERGER, OR THE ACQUIRER
OF IMCOR'S ASSETS, AGREES IN WRITING TO ASSUME ALL OF THE OBLIGATIONS OF IMCOR
TO KYOSEI IN THIS AGREEMENT.
[Signature page follows]
16
IN WITNESS WHEREOF the parties, intending to be legally bound, have caused this
Agreement to be executed by their duly authorized representatives.
IMCOR,
KYOSEI PHARMACEUTICAL Co., LTD.
A DIVISION OF PHOTOGEN TECHNOLOGIES, INC.
By:
/s/ Taffy Williams
By:
/s/
Shigeharu Higuchi
Name: Taffy Williams
Name: Shigeharu