an Operating Unit of Berlex, Inc.
340 Changebridge Road
Montville, NJ 07045
Attn: Head of Oncology Global Business Unit
Copy to:
Berlex Pharmaceuticals, an Operating Unit of Berlex, Inc.
340 Changebridge Road
Montville, NJ 07045
Attn: General Counsel
Either Party may by like notice specify or change an address to which notices
and communications shall thereafter be sent.
Notices sent by mail or overnight
delivery service shall be effective upon receipt, and notices given personally
shall be effective when delivered.
SECTION 17.08
INDEPENDENT CONTRACTORS.
IT IS EXPRESSLY
AGREED THAT SONUS AND SCHERING SHALL BE INDEPENDENT CONTRACTORS AND THAT THE
RELATIONSHIP BETWEEN THE TWO PARTIES SHALL NOT CONSTITUTE A PARTNERSHIP OR
AGENCY OF ANY KIND.
NEITHER SONUS NOR SCHERING SHALL HAVE THE AUTHORITY TO MAKE
ANY STATEMENTS, REPRESENTATIONS OR COMMITMENTS OF ANY KIND, OR TO TAKE ANY
ACTION, WHICH SHALL BE BINDING ON THE OTHER PARTY, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE OTHER PARTY.
SECTION 17.09
RULES OF CONSTRUCTION.
THE PARTIES
HERETO AGREE THAT THEY HAVE BEEN REPRESENTED BY COUNSEL DURING THE NEGOTIATION
AND EXECUTION OF THIS AGREEMENT AND, THEREFORE, WAIVE THE APPLICATION OF ANY
LAW, REGULATION, HOLDING OR RULE OF CONSTRUCTION PROVIDING THAT AMBIGUITIES IN
AN AGREEMENT OR OTHER DOCUMENT WILL BE CONSTRUED AGAINST THE PARTY DRAFTING SUCH
AGREEMENT OR DOCUMENT.
SECTION 17.10
ENTIRE AGREEMENT; AMENDMENT.
THIS
AGREEMENT (INCLUDING THE EXHIBITS AND SCHEDULES ATTACHED HERETO) SETS FORTH ALL
OF THE COVENANTS, PROMISES, AGREEMENTS, WARRANTIES, REPRESENTATIONS, CONDITIONS
AND UNDERSTANDINGS BETWEEN THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDES AND TERMINATES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
BETWEEN THE PARTIES.
THERE ARE NO COVENANTS, PROMISES, AGREEMENTS, WARRANTIES,
REPRESENTATIONS CONDITIONS OR UNDERSTANDINGS, EITHER ORAL OR WRITTEN, BETWEEN
THE PARTIES OTHER THAN AS SET FORTH HEREIN.
NO SUBSEQUENT ALTERATION,
AMENDMENT, CHANGE OR ADDITION TO THIS AGREEMENT SHALL BE BINDING UPON THE
42
PARTIES HERETO UNLESS REDUCED TO WRITING AND SIGNED BY THE RESPECTIVE AUTHORIZED
OFFICERS OF THE PARTIES.
SECTION 17.11
HEADINGS.
THE CAPTIONS CONTAINED IN THIS
AGREEMENT ARE NOT A PART OF THIS AGREEMENT, BUT ARE MERELY GUIDES OR LABELS TO
ASSIST IN LOCATING AND READING THE SEVERAL ARTICLES HEREOF.
SECTION 17.12
PUBLICITY.
SCHERING AND SONUS SHALL
CONSULT WITH EACH OTHER BEFORE ISSUING ANY PRESS RELEASE WITH RESPECT TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING, WITHOUT
LIMITATION, RELATING TO THE ACTIVITIES OR INFORMATION INCLUDED IN ANY
DEVELOPMENT PLAN), AND NEITHER SHALL ISSUE ANY SUCH PRESS RELEASE OR MAKE ANY
SUCH PUBLIC STATEMENT WITHOUT THE PRIOR CONSENT OF THE OTHER, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD; PROVIDED, HOWEVER, (I) THAT A PARTY MAY,
WITHOUT THE PRIOR CONSENT OF THE OTHER PARTY, ISSUE SUCH PRESS RELEASE OR MAKE
SUCH PUBLIC STATEMENT AS MAY UPON THE ADVICE OF COUNSEL BE REQUIRED BY LAW OR
THE RULES AND REGULATIONS OF THE NASDAQ OR ANY STOCK EXCHANGE, OR UNDER
APPLICABLE SECURITIES LAWS, OR ANY OTHER APPLICABLE LAWS IF IT HAS USED
REASONABLE EFFORTS TO CONSULT WITH THE OTHER PARTY PRIOR THERETO, AND (II) SUCH
CONSENT SHALL BE DEEMED TO HAVE BEEN