WILL NOT BE AFFECTED.
The symbol [***] is used to indicate that a portion of the exhibit has been
omitted and filed separately with the commission.
Confidential treatment has
been requested with respect to the omitted portion.
11.5.
ENTIRE AGREEMENT. THIS AGREEMENT AND ANY EXHIBITS AND SCHEDULES
REFERRED TO IN THIS AGREEMENT CONSTITUTE THE FINAL, COMPLETE, AND EXCLUSIVE
STATEMENT OF THE TERMS OF THE AGREEMENT BETWEEN THE PARTIES PERTAINING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS
UNDERSTANDINGS OR AGREEMENTS OF THE PARTIES AS TO SUCH SUBJECT MATTER, INCLUDING
BY NOT LIMITED TO THE LETTER AGREEMENT DATED FEBRUARY 21, 2003.
NO PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, NOR IS ANY PARTY RELYING ON, ANY
REPRESENTATION OR WARRANTY OUTSIDE THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
11.6.
MODIFICATION OF AGREEMENT.
NO TERMS OR CONDITIONS OF THIS
AGREEMENT WILL BE VARIED OR MODIFIED BY ANY PRIOR OR SUBSEQUENT STATEMENT,
CONDUCT OR ACT OF EITHER OF THE PARTIES, EXCEPT THAT THE PARTIES MAY SUPPLEMENT,
AMEND, OR MODIFY THIS AGREEMENT BY WRITTEN INSTRUMENTS SPECIFICALLY REFERRING
TO, AND EXECUTED IN THE SAME MANNER AS, THIS AGREEMENT.
11.7.
ASSIGNMENT.
NEITHER PARTY HAS THE POWER TO ASSIGN NOR MAY ASSIGN
THIS AGREEMENT NOR ANY INTEREST HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF
THE OTHER PARTY, EXCEPT THAT WITHOUT OBTAINING THE CONSENT OF THE OTHER PARTY
EITHER PARTY MAY ASSIGN THIS AGREEMENT OR ANY OF ITS RIGHTS OR OBLIGATIONS TO
(I) ANY AFFILIATE OF SUCH PARTY, (II) ANY THIRD PARTY WITH WHICH IT MAY MERGE OR
CONSOLIDATE OR WHO ACQUIRES MORE THAN FIFTY PERCENT (50%) OF ITS OUTSTANDING
VOTING SECURITIES, OR (III) PROVIDED THAT PRIOR TO THE EFFECTIVE DATE OF
ASSIGNMENT THE PROSPECTIVE ASSIGNEE AGREES WITH THE NON-ASSIGNING PARTY IN
WRITING TO BE SUBJECT TO AND BOUND BY, AND TO PERFORM, ALL OF THE ASSIGNOR'S
OBLIGATIONS AND COVENANTS IN THIS AGREEMENT, TO ANY THIRD PARTY TO WHICH IT MAY
TRANSFER ALL OR SUBSTANTIALLY ALL OF ITS ASSETS AND/OR RIGHTS TO WHICH THIS
AGREEMENT RELATES.
ANY UNAUTHORIZED ASSIGNMENT WILL BE VOID AND OF NO FORCE AND
EFFECT.
WHETHER OR NOT A PARTY CONSENTS TO ANY TRANSFER OR ASSIGNMENT BY THE
OTHER PARTY, NO TRANSFER OR ASSIGNMENT OF THIS AGREEMENT SHALL RELIEVE THE
ASSIGNOR FROM, AND THE ASSIGNOR SHALL REMAIN FULLY AND PRIMARILY LIABLE FOR, THE
LIABILITIES, OBLIGATIONS AND COVENANTS OF THE ASSIGNOR UNDER THIS AGREEMENT.
SUBJECT TO THE FOREGOING, THE RIGHTS AND LIABILITIES OF THE PARTIES WILL BIND
AND INURE TO THE BENEFIT OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
11.8.
RELATIONSHIP.
NOTHING CONTAINED IN THIS AGREEMENT WILL BE
CONSTRUED TO MAKE THE PARTIES PARTNERS, JOINT VENTURERS, PRINCIPLES, AGENTS OR
EMPLOYEES OF THE OTHER.
NEITHER PARTY WILL HAVE THE RIGHT, POWER, OR AUTHORITY,
EXPRESS OR IMPLIED, TO BIND THE OTHER PARTY.
11.9.
WAIVER. NO WAIVER OF A BREACH, FAILURE OF ANY CONDITION, OR ANY
RIGHT OR REMEDY, CONTAINED IN OR GRANTED BY THE PROVISIONS OF THIS AGREEMENT
WILL BE EFFECTIVE UNLESS IT IS IN WRITING AND SIGNED BY THE PARTY