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.
9.8
AFFILIATES; SUBCONTRACTORS.
EACH PARTY MAY USE AFFILIATES TO
PERFORM SUCH PARTY'S OBLIGATIONS UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT
SUCH PARTY CONTRACTUALLY BINDS SUCH AFFILIATE TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT AND THE ORIGINAL PARTY GUARANTEES THE
10
performance of its Affiliate.
Each Party shall have the right to engage Third
Party subcontractors or consultants to perform certain of its obligations under
this Agreement; provided, however, that such subcontractors or consultants are
contractually bound to the terms and conditions of this Agreement and the
original Party guarantees the performance of such subcontractor or consultants.
9.9
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.
9.10
ENTIRE AGREEMENT; AMENDMENT.
THIS AGREEMENT (INCLUDING THE EXHIBITS
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.
THIS AGREEMENT SUPERSEDES AND
TERMINATES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF.
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 PARTIES HERETO UNLESS REDUCED TO WRITING AND SIGNED BY THE
RESPECTIVE AUTHORIZED OFFICERS OF THE PARTIES.
9.11
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.
9.12
PUBLICITY.
SCHERING AND SONUS SHALL CONSULT WITH EACH OTHER BEFORE
ISSUING ANY PRESS RELEASE WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY 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, IF IT HAS USED REASONABLE EFFORTS TO CONSULT WITH
THE OTHER PARTY PRIOR THERETO, AND (II) SUCH CONSENT SHALL BE DEEMED TO HAVE
BEEN GIVEN IF THE RECIPIENT OF THE PRESS RELEASE OR PUBLIC STATEMENT