ANY PARTY IN
EXERCISING ANY RIGHT, POWER OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER
THEREOF NOR SHALL ANY SINGLE OR PARTIAL EXERCISE THEREOF PRECLUDE ANY OTHER OR
FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE.
SECTION 11.4
ASSIGNMENT. NO PARTY TO THIS AGREEMENT MAY ASSIGN ANY OF ITS
RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF
THE OTHER PARTY; PROVIDED, HOWEVER, THAT PURCHASER MAY ASSIGN ITS RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT, IN WHOLE OR IN PART, TO ITS AFFILIATES WITHOUT
THE CONSENT OF SELLER; PROVIDED, FURTHER, THAT NO SUCH ASSIGNMENT SHALL RELIEVE
PURCHASER OR GUARANTOR OF ANY OF ITS OBLIGATIONS HEREUNDER.
SECTION 11.5
ENTIRE AGREEMENT. THIS AGREEMENT (INCLUDING ALL SCHEDULES AND
EXHIBITS) CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS,
ORAL OR WRITTEN, WITH RESPECT TO
76
SUCH MATTERS EXCEPT FOR (I) THE CONFIDENTIALITY AGREEMENT WHICH WILL REMAIN IN
FULL FORCE AND EFFECT FOR THE TERM PROVIDED FOR THEREIN IF THIS AGREEMENT IS
TERMINATED IN ACCORDANCE WITH SECTION 10.1 AND (II) ANY WRITTEN AGREEMENT OF THE
PARTIES THAT EXPRESSLY PROVIDES THAT IT IS NOT SUPERSEDED BY THIS AGREEMENT.
SECTION 11.6
PARTIES IN INTEREST. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF
AND BE BINDING UPON THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED
ASSIGNS. NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO CONFER
UPON ANY PERSON OTHER THAN PURCHASER, SELLER OR THEIR SUCCESSORS OR PERMITTED
ASSIGNS ANY RIGHTS OR REMEDIES UNDER OR BY REASON OF THIS AGREEMENT; PROVIDED,
HOWEVER, THE CONVEYED ENTITY COVERED PERSONS SHALL BE THIRD-PARTY BENEFICIARIES
OF THE OBLIGATIONS OF PURCHASER SET FORTH IN SECTION 5.12 AND THE APPLICABLE
AFFILIATES OF SELLER SHALL BE THIRD-PARTY BENEFICIARIES OF THE OBLIGATIONS OF
PURCHASER SET FORTH IN SECTION 5.13.
SECTION 11.7
PUBLIC DISCLOSURE. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, EACH OF PURCHASER AND SELLER AGREES THAT, EXCEPT AS MAY BE REQUIRED TO
COMPLY WITH THE REQUIREMENTS OF ANY APPLICABLE LAWS AND THE RULES AND
REGULATIONS OF EACH STOCK EXCHANGE UPON WHICH THE SECURITIES OF SUCH PARTY IS
LISTED, IF ANY, NO PRESS RELEASE OR SIMILAR PUBLIC ANNOUNCEMENT OR COMMUNICATION
SHALL BE MADE CONCERNING THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT UNLESS
THE PARTIES SHALL HAVE CONSULTED IN ADVANCE WITH RESPECT THERETO.
SECTION 11.8
RETURN OF INFORMATION. IF FOR ANY REASON WHATSOEVER THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE NOT CONSUMMATED, PURCHASER SHALL
PROMPTLY RETURN TO SELLER ALL BOOKS AND RECORDS FURNISHED BY SELLER, ANY OTHER
SELLER ENTITY, ANY CONVEYED ENTITY OR ANY OF THEIR RESPECTIVE AFFILIATES,
AGENTS, EMPLOYEES, OR REPRESENTATIVES (INCLUDING ALL COPIES, SUMMARIES AND
ABSTRACTS, IF ANY, THEREOF) IN ACCORDANCE WITH THE TERMS OF THE CONFIDENTIALITY
AGREEMENT.
SECTION 11.9
EXPENSES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE
CONSUMMATED, ALL COSTS AND EXPENSES INCURRED IN CONNECTION WITH THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BORNE BY THE PARTY INCURRING
SUCH EXPENSES.