THE CASE OF A WAIVER, BY THE
PARTY AGAINST WHOM ENFORCEMENT OF ANY SUCH WAIVER IS SOUGHT.
NO WAIVER OF ANY
DEFAULT WITH RESPECT TO ANY PROVISION, CONDITION OR REQUIREMENT OF THIS
AGREEMENT SHALL BE DEEMED TO BE A CONTINUING WAIVER IN THE FUTURE OR A WAIVER OF
ANY SUBSEQUENT DEFAULT OR A WAIVER OF ANY OTHER PROVISION, CONDITION OR
REQUIREMENT HEREOF, NOR SHALL ANY DELAY OR OMISSION OF EITHER PARTY TO EXERCISE
ANY RIGHT HEREUNDER IN ANY MANNER IMPAIR THE EXERCISE OF ANY SUCH RIGHT.
5.6
CONSTRUCTION.
THE HEADINGS HEREIN ARE FOR CONVENIENCE ONLY, DO
NOT CONSTITUTE A PART OF THIS AGREEMENT AND SHALL NOT BE DEEMED TO LIMIT OR
AFFECT ANY OF THE PROVISIONS HEREOF.
THE LANGUAGE USED IN THIS AGREEMENT WILL
BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL
INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
5.7
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES AND THEIR SUCCESSORS AND PERMITTED ASSIGNS.
THE COMPANY MAY NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER
WITHOUT THE PRIOR WRITTEN CONSENT OF THE PURCHASERS; PROVIDED, HOWEVER THAT NO
SUCH CONSENT SHALL BE REQUIRED IN CONNECTION WITH:
(A) A CONSOLIDATION OR
MERGER OF THE COMPANY WITH OR INTO ANOTHER CORPORATION OR OTHER ENTITY OR A
SALE, TRANSFER OR OTHER DISPOSITION OF ALL OR SUBSTANTIALLY ALL THE COMPANY'S
PROPERTY, ASSETS OR BUSINESS TO ANOTHER CORPORATION OR OTHER ENTITY; OR (B) A
REORGANIZATION OR OTHER TRANSACTION THE PRIMARY PURPOSE OF WHICH IS TO CHANGE
THE JURISDICTION OF ORGANIZATION AND/OR CORPORATE FORM OF THE COMPANY, PROVIDED
THAT SUCH MERGER, REORGANIZATION OR OTHER TRANSACTION DOES NOT HAVE AN ADVERSE
TAX IMPACT UPON THE PURCHASERS WITH RESPECT TO THEIR PURCHASE OR SALE OF THE
SECURITIES.
ANY PURCHASER MAY ASSIGN ITS RIGHTS UNDER THIS AGREEMENT AND THE
REGISTRATION RIGHTS AGREEMENT TO ANY PERSON TO WHOM SUCH PURCHASER ASSIGNS OR
TRANSFERS ANY SECURITIES.
5.8
NO THIRD-PARTY BENEFICIARIES.
THIS AGREEMENT IS INTENDED FOR THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED
ASSIGNS AND IS NOT FOR THE BENEFIT OF,
25
NOR MAY ANY PROVISION HEREOF BE ENFORCED BY, ANY OTHER PERSON, EXCEPT AS
OTHERWISE SET FORTH IN SECTIONS 4.12.
5.9
GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF.
EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF SANTA CLARA COUNTY,
CALIFORNIA FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN
(INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS),
AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY