THE COMPANY WITH, OR ITS
MERGER INTO, ANY OTHER CORPORATION, OR THE SALE BY THE COMPANY OF ALL OR
SUBSTANTIALLY ALL OF ITS PROPERTIES OR ASSETS, OR THE ASSIGNMENT BY THE COMPANY
OF THIS AGREEMENT AND THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER TO ANY
SUCCESSOR IN INTEREST OR ANY AFFILIATED COMPANY. SUBJECT TO THE FOREGOING, THIS
AGREEMENT SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE PARTIES
AND THEIR RESPECTIVE HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS, AND PERMITTED
ASSIGNS, AND SHALL NOT BENEFIT ANY PERSON OR ENTITY OTHER THAN THOSE ENUMERATED
ABOVE.
11.
NOTICES. ALL NOTICES OR OTHER COMMUNICATIONS REQUIRED OR PERMITTED
HEREUNDER SHALL BE MADE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN
IF DELIVERED BY HAND OR MAILED, POSTAGE PREPAID, BY CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED, AND ADDRESSED TO THE COMPANY AT:
Aksys, Ltd.
Two Marriott Drive
Lincolnshire, IL 60069
Attn: Laurence Birch
or to the Consultant at:
WC Dow & Associates
13920 Williston Way
Naples, FL 34119
Notice of change of address shall be effective only when done in accordance with
this Section.
12.
ENTIRE AGREEMENT. THE TERMS OF THIS AGREEMENT ARE INTENDED BY THE
PARTIES TO BE THE FINAL EXPRESSION OF THEIR AGREEMENT WITH RESPECT TO THE
RETENTION OF CONSULTANT BY THE COMPANY AND FULLY SUPERSEDES ANY PRIOR OR
CONTEMPORANEOUS AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREIN. THE PARTIES FURTHER INTEND THAT THIS AGREEMENT SHALL CONSTITUTE THE
COMPLETE AND EXCLUSIVE STATEMENT OF ITS TERMS AND THAT NO EXTRINSIC EVIDENCE
WHATSOEVER MAY BE INTRODUCED IN ANY JUDICIAL, ADMINISTRATIVE, OR OTHER LEGAL
PROCEEDING INVOLVING THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THIS
AGREEMENT SHALL NOT SUPERSEDE OR REPLACE, AND SHALL NOT HAVE ANY EFFECT ON ANY
OF THE STATEMENTS, REPRESENTATIONS, OR COVENANTS CONTAINED IN (A) CONSULTANT'S
LETTER OF RESIGNATION FROM THE COMPANY'S BOARD OF DIRECTORS DATED MARCH 30, 2006
(THE "DIRECTOR RESIGNATION LETTER"), (B) CONSULTANT'S LETTER OF RESIGNATION AS
THE COMPANY'S PRESIDENT AND CEO DATED MARCH 30, 2006 (THE "OFFICER RESIGNATION
LETTER") AND (C) THE SEPARATION AGREEMENT. IN ADDITION, THIS AGREEMENT SHALL NOT
SUPERSEDE OR REPLACE, AND SHALL NOT HAVE ANY EFFECT ON ANY OF THE STATEMENTS,
REPRESENTATIONS, OR COVENANTS CONTAINED IN SECTIONS 1(A), 3, AND 4-7 OF THE
SEVERANCE AGREEMENT; PROVIDED, HOWEVER, THAT ALL OTHER PROVISIONS IN THE
SEVERANCE AGREEMENT SHALL BE SUPERSEDED AND REPLACED BY THIS AGREEMENT. TO THE
EXTENT THAT THERE IS ANY INCONSISTENCY BETWEEN THE TERMS OF THIS AGREEMENT AND
THE TERMS OF THE SEVERANCE AGREEMENT, THE TERMS OF THIS AGREEMENT SHALL GOVERN.
13.
AMENDMENTS; WAIVERS. THIS AGREEMENT MAY NOT BE MODIFIED, AMENDED,
OR TERMINATED EXCEPT BY AN INSTRUMENT IN WRITING, SIGNED BY A DULY AUTHORIZED
REPRESENTATIVE OF THE COMPANY AND THE CONSULTANT. BY AN INSTRUMENT IN WRITING
SIMILARLY EXECUTED, EITHER PARTY MAY WAIVE COMPLIANCE BY THE OTHER PARTY WITH
ANY PROVISION OF THIS AGREEMENT THAT SUCH OTHER PARTY WAS OR IS OBLIGATED TO
COMPLY WITH OR PERFORM, PROVIDED, HOWEVER, THAT SUCH WAIVER SHALL NOT OPERATE AS
A WAIVER OF, OR ESTOPPEL WITH
7
RESPECT