PURSUANT TO SECTION 7.1(A), SHOULD BE HELD
INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT, THEN, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, (A) ALL OTHER PROVISIONS HEREOF SHALL REMAIN IN
FULL FORCE AND EFFECT AND SHALL BE LIBERALLY CONSTRUED IN ORDER TO CARRY OUT THE
INTENT OF THE PARTIES AS NEARLY AS MAY BE POSSIBLE, AND (B) THE PARTIES AGREE TO
USE THEIR BEST EFFORTS TO NEGOTIATE A PROVISION, IN REPLACEMENT OF THE PROVISION
HELD INVALID, ILLEGAL OR UNENFORCEABLE, THAT IS CONSISTENT WITH APPLICABLE LAW
AND ACCOMPLISHES, AS NEARLY AS POSSIBLE, THE ORIGINAL INTENTION OF THE PARTIES
WITH RESPECT THERETO.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH
PARTY HEREBY WAIVES ANY PROVISION OF LAW THAT WOULD RENDER ANY PROVISION HEREOF
PROHIBITED OR UNENFORCEABLE IN ANY RESPECT.
15.9
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL, AND ALL OF WHICH,
TAKEN TOGETHER, SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
15.10
CONSTRUCTION.
EXCEPT WHERE THE CONTEXT OTHERWISE REQUIRES, WHEREVER
USED THE SINGULAR SHALL INCLUDE THE PLURAL, THE PLURAL THE SINGULAR, THE USE OF
ANY GENDER SHALL BE APPLICABLE TO ALL GENDERS.
THE WORDS "HEREOF" AND
"HEREUNDER", AND WORDS OF SIMILAR IMPORT, SHALL BE CONSTRUED TO REFER TO THIS
AGREEMENT (INCLUDING THE ANNEXES HERETO) AS AN ENTIRETY AND NOT TO ANY
PARTICULAR PROVISION.
THE CAPTIONS OF THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY AND IN NO WAY DEFINE, DESCRIBE, EXTEND OR LIMIT THE SCOPE OR
INTENT OF THIS AGREEMENT OR THE INTENT OF ANY PROVISION CONTAINED IN THIS
AGREEMENT.
ANY REFERENCE IN THIS AGREEMENT TO A MATTER OR ACTION BEING SUBJECT
TO THE "MUTUAL AGREEMENT" OR "MUTUAL CONSULTATION" OF THE MEMBER PARTIES, OR
WORDS OF SIMILAR IMPORT, SHALL NOT BE CONSTRUED AS AN AGREEMENT THAT THE MEMBER
PARTIES SHALL AGREE TO SUCH MATTER OR ACTION.
THE LANGUAGE OF THIS AGREEMENT
SHALL BE DEEMED TO BE THE LANGUAGE MUTUALLY CHOSEN BY THE PARTIES AND NO RULE OF
STRICT CONSTRUCTION SHALL BE APPLIED AGAINST ANY PARTY.
15.11
STATUS OF THE PARTIES.
EXCEPT AS SET FORTH EXPRESSLY IN THIS
AGREEMENT OR IN THE OPERATING AGREEMENT, NO PARTY SHALL HAVE THE RIGHT TO ENTER
INTO ANY AGREEMENTS OR TAKE ACTION ON BEHALF OF ANY OTHER PARTY, NOR SHALL IT
REPRESENT TO ANY PERSON THAT IT HAS ANY SUCH RIGHT OR AUTHORITY.
EXCEPT FOR THE
STATUS OF BMS SUB AND GILEAD SUB AS MEMBERS OF THE JV, NOTHING IN THIS AGREEMENT
SHALL BE CONSTRUED AS ESTABLISHING A PARTNERSHIP OR JOINT VENTURE RELATIONSHIP
96
BETWEEN THE PARTIES.
EACH MEMBER PARTY SHALL BE MADE A THIRD PARTY BENEFICIARY
OF ALL ANCILLARY AGREEMENTS TO WHICH THE OTHER MEMBER PARTY IS A PARTY, FOR THE
PURPOSE OF ENFORCING THE JV'S RIGHTS THEREUNDER.
15.12
STANDSTILL.
DURING THE PERIOD COMMENCING ON THE EFFECTIVE DATE AND
CONTINUING UNTIL THE FIFTH ANNIVERSARY OF THE EFFECTIVE DATE, BMS SHALL NOT, AND
SHALL CAUSE THE AFFILIATES OF BMS NOT TO:
(A)
ACQUIRE, OR OFFER OR AGREE TO ACQUIRE,
DIRECTLY OR