CAUSES OF NONPERFORMANCE,
AND SHALL CONTINUE PERFORMANCE HEREUNDER WITH REASONABLE DISPATCH WHENEVER SUCH
CAUSES ARE REMOVED. EITHER PARTY SHALL PROVIDE THE OTHER PARTY WITH PROMPT
WRITTEN NOTICE OF ANY DELAY OR FAILURE TO PERFORM THAT OCCURS BY REASON OF FORCE
MAJEURE.
THE PARTIES SHALL MUTUALLY SEEK A RESOLUTION OF THE DELAY OR THE
FAILURE TO PERFORM AS NOTED ABOVE.
13.2
ASSIGNMENT.
THIS AGREEMENT MAY NOT BE ASSIGNED
OR OTHERWISE TRANSFERRED BY EITHER PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF
THE OTHER PARTY; PROVIDED, HOWEVER, THAT EITHER EPIX OR SCHERING MAY, WITHOUT
SUCH CONSENT, ASSIGN ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT: (I) TO ANY
AFFILIATE, OR (II) IN CONNECTION WITH A MERGER, CONSOLIDATION OR SALE OF
SUBSTANTIALLY ALL OF SUCH PARTY'S ASSETS TO AN UNRELATED THIRD PARTY; PROVIDED,
HOWEVER, WITH RESPECT TO THIS SUBSECTION (II), THAT THE OTHER PARTY HAS THE
RIGHT TO TERMINATE WITH IMMEDIATE EFFECT THE RESEARCH PROGRAM TERM UNDER THIS
AGREEMENT; PROVIDED, FURTHER, WITH RESPECT TO THIS SUBSECTION (II), THAT SUCH
PARTY'S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT SHALL BE ASSUMED IN WRITING
BY ITS SUCCESSOR IN INTEREST IN ANY SUCH TRANSACTION AND SHALL NOT BE
TRANSFERRED SEPARATELY FROM ALL OR SUBSTANTIALLY ALL OF ITS DIAGNOSTIC IMAGING
BUSINESS ASSETS.
ANY PURPORTED ASSIGNMENT IN VIOLATION OF THE PRECEDING
SENTENCE SHALL BE VOID.
ANY PERMITTED ASSIGNEE SHALL ASSUME ALL OBLIGATIONS OF
ITS ASSIGNOR UNDER THIS AGREEMENT.
13.3
SEVERABILITY.
EACH PARTY HEREBY AGREES THAT IT
DOES NOT INTEND, BY ITS EXECUTION HEREOF, TO VIOLATE ANY PUBLIC POLICY,
STATUTORY OR COMMON LAWS, RULES, REGULATIONS, TREATY OR
31
DECISION OF ANY GOVERNMENT AGENCY OR EXECUTIVE BODY THEREOF OF ANY COUNTRY OR
COMMUNITY OR ASSOCIATION OF COUNTRIES.
SHOULD ONE OR MORE PROVISIONS OF THIS
AGREEMENT BE OR BECOME INVALID, THE PARTIES HERETO SHALL SUBSTITUTE, BY MUTUAL
CONSENT, VALID PROVISIONS FOR SUCH INVALID PROVISIONS WHICH VALID PROVISIONS IN
THEIR ECONOMIC AND OTHER EFFECTS ARE SUFFICIENTLY SIMILAR TO THE INVALID
PROVISIONS THAT IT CAN BE REASONABLY ASSUMED THAT THE PARTIES WOULD HAVE ENTERED
INTO THIS AGREEMENT WITH SUCH VALID PROVISIONS.
IN CASE SUCH VALID PROVISIONS
CANNOT BE AGREED UPON, THE INVALIDITY OF ONE OR SEVERAL PROVISIONS OF THIS
AGREEMENT SHALL NOT AFFECT THE VALIDITY OF THIS AGREEMENT AS A WHOLE OR THE
VALIDITY OF ANY PORTIONS HEREOF, UNLESS THE INVALID PROVISIONS ARE OF SUCH
ESSENTIAL IMPORTANCE TO THIS AGREEMENT THAT IT IS TO BE REASONABLY ASSUMED THAT
THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE INVALID
PROVISIONS.
13.4
NOTICES.
ANY CONSENT, NOTICE OR REPORT REQUIRED
OR PERMITTED TO BE GIVEN OR MADE UNDER THIS AGREEMENT BY ONE OF THE PARTIES
HERETO TO THE OTHER SHALL BE IN WRITING, DELIVERED PERSONALLY OR BY COURIER,
POSTAGE PREPAID (WHERE APPLICABLE), ADDRESSED TO SUCH OTHER PARTY AT ITS ADDRESS
INDICATED BELOW, OR TO SUCH OTHER ADDRESS AS THE ADDRESSEE SHALL HAVE LAST
FURNISHED IN WRITING TO THE ADDRESSOR AND SHALL BE EFFECTIVE UPON RECEIPT BY THE
ADDRESSEE.
If to
EPIX:
EPIX Medical, Inc.
71 Rogers Street
Cambridge, Massachusetts 02142-1118
Attention:
Chief Executive Officer
with a