AS INDICATED
IN A WRITING ISSUED TO EITHER BESA, XTENT OR XTENT'S NOTIFIED BODY BY THE MEB.
(C)
BY EITHER PARTY FOR INSOLVENCY. IN ADDITION TO
THE ABOVE RIGHTS TO TERMINATE, EITHER PARTY MAY TERMINATE ON TEN (10) DAYS'
WRITTEN NOTICE TO THE OTHER IF THAT OTHER PARTY MAKES AN ASSIGNMENT FOR THE
BENEFIT OF CREDITORS, FILES A PETITION IN BANKRUPTCY, IS ADJUDICATED INSOLVENT
OR BANKRUPT, OR IF A RECEIVER OR TRUSTEE IS APPOINTED WITH RESPECT TO A
SUBSTANTIAL PART OF ITS ASSETS OR A SIMILAR PROCEEDING IS COMMENCED AGAINST THAT
PARTY THAT WOULD SUBSTANTIALLY IMPAIR ITS ABILITY TO PERFORM HEREUNDER.
11.4
EFFECT OF TERMINATION.
EACH PARTY'S RIGHT OF
TERMINATION UNDER THIS ARTICLE IS IN ADDITION TO ANY OTHER RIGHTS IT MAY HAVE
UNDER THIS RESTATED AGREEMENT OR OTHERWISE, AND THE EXERCISE OF A RIGHT OF
TERMINATION WILL NOT BE AN ELECTION OF REMEDIES.
IF THIS RESTATED AGREEMENT IS
TERMINATED PURSUANT TO THIS ARTICLE, ALL FURTHER RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS RESTATED AGREEMENT WILL TERMINATE, INCLUDING, WITHOUT
LIMITATION, THE LICENSE GRANTED HEREUNDER, EXCEPT THAT THE RIGHTS AND
OBLIGATIONS SET FORTH IN SECTIONS 3.2(C), 4.2 (EXCLUDING 4.2(D)), 4.3, 5.5, 5.7,
AND 11.4, AND ARTICLE VI, ARTICLE VII, ARTICLE VIII, ARTICLE IX, ARTICLE X, AND
ARTICLE XII, AND EACH OF THEIR SUBPARTS, WILL SURVIVE IN ACCORDANCE WITH THEIR
RESPECTIVE TERMS; PROVIDED, HOWEVER, THAT IF THIS RESTATED AGREEMENT IS
TERMINATED BY A PARTY BECAUSE OF THE BREACH OF THIS RESTATED AGREEMENT BY
ANOTHER PARTY OR BECAUSE ONE OR MORE OF THE CONDITIONS TO THE TERMINATING
PARTY'S OBLIGATIONS UNDER THIS RESTATED AGREEMENT IS NOT SATISFIED AS A RESULT
OF ANOTHER PARTY'S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THIS RESTATED
35
AGREEMENT, THE TERMINATING PARTY'S RIGHT TO PURSUE ALL REMEDIES WILL SURVIVE
SUCH TERMINATION UNIMPAIRED.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF A
TERMINATION, XTENT SHALL CONTINUE TO HAVE THE RIGHTS GRANTED HEREIN TO THE
EXTENT NECESSARY TO SELL ANY REMAINING INVENTORY AND TO COMPLETE AND SELL ANY
WORK-IN-PROCESS, SUBJECT TO THE PAYMENT OF PERCENTAGE ROYALTIES AS SET FORTH IN
SECTION 4.2 AND ALL PAYMENTS DUE TO BESA SHALL BE MADE BY XTENT.
ARTICLE XII
MISCELLANEOUS
12.1
FEES AND EXPENSES.
EXCEPT AS PROVIDED BELOW, EACH OF
THE PARTIES WILL BEAR ITS OWN LEGAL, ACCOUNTING AND ALL OTHER EXPENSES IN
CONNECTION WITH THE NEGOTIATION AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS RESTATED AGREEMENT.
12.2
NOTICES.
ANY NOTICE OR OTHER COMMUNICATION IN
CONNECTION WITH THIS RESTATED AGREEMENT MUST BE IN WRITING, MUST BE ADDRESSED AS
PROVIDED BELOW AND WILL BE DEEMED DELIVERED WHEN (A) ACTUALLY DELIVERED
ELECTRONICALLY (INCLUDING IN THE FORM OF FACSIMILE TRANSMISSION WITH RECEIPT
CONFIRMED) OR IN PERSON, PROVIDED THAT DELIVERY IS MADE DURING NORMAL BUSINESS
HOURS, (B) THREE BUSINESS DAYS HAVE ELAPSED AFTER DEPOSIT IN THE UNITED STATES
MAIL, POSTAGE PREPAID AND REGISTERED OR CERTIFIED, RETURN RECEIPT REQUESTED, OR
(C) TWO BUSINESS DAYS AFTER SENT BY NATIONALLY RECOGNIZED OVERNIGHT RECEIPTED
COURIER:
if to BESA, to:
Biosensors Europe S.A.
Rue de Lausanne 29,
1110 Morges (VD)
Switzerland
Telephone: