SUCH
SCHERING INVENTORY, THEN SCHERING SHALL SHIP AT SONUS' COST AND DIRECTION SUCH
INVENTORY TO SONUS.
SONUS SHALL PAY FOR SUCH INVENTORY IN ADVANCE OF RECEIPT OF
SUCH INVENTORY.
(B)
ELECTION BY SCHERING.
IN THE EVENT OF A
BANKRUPTCY EVENT OR A MATERIAL DEFAULT DESCRIBED IN SECTION 16.02(B) AND (C) BY
SONUS (WHICH DEFAULT IS NOT CURED AS PROVIDED THEREIN), SCHERING MAY ELECT, IN
LIEU OF TERMINATING THIS AGREEMENT, TO DECLARE THE LICENSE GRANTED PURSUANT TO
THIS AGREEMENT TO BE IRREVOCABLE.
FROM THE DATE OF RECEIPT OF NOTICE OF SUCH
ELECTION, SONUS SHALL HAVE NO FURTHER RIGHTS OR OBLIGATIONS UNDER THIS
AGREEMENT, EXCEPT THAT SONUS MAY ENFORCE ANY FINANCIAL OBLIGATIONS OF SCHERING
PURSUANT TO ARTICLE III OF THIS AGREEMENT, PROVIDED THAT ANY ADDITIONAL
DEVELOPMENT COSTS INCURRED BY SCHERING TO DEVELOP AND COMMERCIALIZE THE PRODUCT
(IN THE ABSENCE OF SONUS' CONTRIBUTION AS PROVIDED FOR IN THIS AGREEMENT) SHALL
BE CREDITED AGAINST ALL AMOUNTS PAYABLE BY SCHERING TO SONUS PURSUANT TO
ARTICLE III.
(C)
GENERAL.
EXCEPT WHERE EXPRESSLY PROVIDED
FOR OTHERWISE IN THIS AGREEMENT, TERMINATION OF THIS AGREEMENT SHALL NOT RELIEVE
THE PARTIES HERETO OF ANY LIABILITY INCLUDING ANY OBLIGATION TO MAKE PAYMENTS
HEREUNDER, WHICH ACCRUED HEREUNDER PRIOR TO THE EXECUTION DATE OF SUCH
TERMINATION, NOR PRECLUDE EITHER PARTY FROM PURSUING ALL RIGHTS AND REMEDIES IT
MAY HAVE HEREUNDER AT LAW OR IN EQUITY WITH RESPECT TO ANY BREACH OF THIS
AGREEMENT NOR PREJUDICE ANY PARTY'S RIGHT TO OBTAIN PERFORMANCE OF ANY
OBLIGATION.
THIS SECTION SHALL SURVIVE TERMINATION OR EXPIRY OF THE AGREEMENT
FOR ANY REASON.
SECTION 16.04
SURVIVING RIGHTS.
THE RIGHTS AND
OBLIGATIONS SET FORTH IN THIS AGREEMENT SHALL EXTEND BEYOND THE TERM OR
TERMINATION OF THIS AGREEMENT ONLY TO THE EXTENT EXPRESSLY PROVIDED FOR HEREIN,
OR TO THE EXTENT THAT THE SURVIVAL OF SUCH RIGHTS OR OBLIGATIONS ARE NECESSARY
TO PERMIT THEIR COMPLETE FULFILLMENT OR DISCHARGE.
SECTION 16.05
RETURN OF CONFIDENTIAL INFORMATION UPON
TERMINATION.
WITHIN THIRTY (30) DAYS FOLLOWING THE EXPIRATION OR TERMINATION OF
THIS AGREEMENT, EACH PARTY SHALL RETURN TO THE OTHER PARTY, OR DESTROY, UPON THE
WRITTEN REQUEST OF THE OTHER PARTY, ANY AND ALL CONFIDENTIAL INFORMATION OF THE
OTHER PARTY IN ITS POSSESSION AND UPON A PARTY'S REQUEST, SUCH DESTRUCTION (OR
DELIVERY) SHALL BE CONFIRMED IN WRITING TO SUCH PARTY BY A RESPONSIBLE OFFICER
OF THE OTHER PARTY; PROVIDED, HOWEVER, THAT EACH PARTY MAY KEEP ONE COPY OF SUCH
CONFIDENTIAL INFORMATION AS NECESSARY TO COMPLY WITH APPLICABLE LAW.
ARTICLE XVII
MISCELLANEOUS
SECTION 17.01
ASSIGNMENT.
SCHERING MAY ASSIGN ANY OF
ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT IN ANY COUNTRY TO ANY OF ITS
AFFILIATES, PROVIDED THAT SUCH ASSIGNMENT DOES NOT RELIEVE SCHERING OF ITS
OBLIGATIONS HEREUNDER OR OTHERWISE RESULT IN A NOVATION, AND MAY SUBLICENSE ITS
RIGHTS HEREUNDER AS PERMITTED UNDER SECTION 2.02 OF THIS AGREEMENT.
EXCEPT AS
EXPRESSLY PROVIDED HEREUNDER, NEITHER THIS AGREEMENT NOR ANY RIGHTS OR
OBLIGATIONS HEREUNDER MAY BE ASSIGNED OR
40
OTHERWISE TRANSFERRED BY EITHER PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE
OTHER PARTY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.