NO
RULE OF STRICT CONSTRUCTION SHALL BE APPLIED AGAINST ANY PARTY.
THE HEADINGS OF
ARTICLES AND SECTIONS HEREIN ARE FOR CONVENIENCE OF REFERENCE, DO NOT CONSTITUTE
A PART OF THIS AGREEMENT, AND SHALL NOT BE DEEMED TO LIMIT OR AFFECT ANY OF THE
PROVISIONS HEREOF.
AS USED IN THIS AGREEMENT, "PERSON" MEANS ANY INDIVIDUAL,
CORPORATION, LIMITED LIABILITY COMPANY, LIMITED OR GENERAL PARTNERSHIP, JOINT
VENTURE, ASSOCIATION, JOINT STOCK COMPANY, TRUST, UNINCORPORATED ORGANIZATION OR
OTHER ENTITY; "KNOWLEDGE" MEANS THE ACTUAL KNOWLEDGE OF A DIRECTOR OR ANY
EXECUTIVE OFFICER OF THE APPLICABLE PARTY OR ANY OF ITS SUBSIDIARIES, AS SUCH
KNOWLEDGE HAS BEEN OBTAINED OR WOULD HAVE BEEN OBTAINED AFTER REASONABLE INQUIRY
BY SUCH PERSON IN THE NORMAL CONDUCT OF THE BUSINESS; AND ALL AMOUNTS SHALL BE
DEEMED TO BE STATED IN U.S. DOLLARS, UNLESS SPECIFICALLY REFERENCED OTHERWISE.
8.7.
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED BY THE
PARTIES AT ANY TIME BEFORE OR AFTER ANY REQUIRED APPROVAL OF MATTERS PRESENTED
IN CONNECTION WITH THE MERGER BY THE STOCKHOLDERS OF THE COMPANY; PROVIDED,
HOWEVER, THAT AFTER ANY SUCH APPROVAL, THERE SHALL NOT BE MADE ANY AMENDMENT
THAT BY LAW REQUIRES FURTHER APPROVAL BY THE STOCKHOLDERS OF THE COMPANY WITHOUT
CONCURRENTLY OBTAINING SUCH FURTHER APPROVAL.
THIS AGREEMENT MAY NOT BE AMENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED ON BEHALF OF EACH OF THE PARTIES.
8.8.
NO THIRD-PARTY BENEFICIARIES.
EXCEPT FOR THE
PROVISIONS OF SECTION 5.10 HEREOF (WHICH IS INTENDED TO BE FOR THE BENEFIT OF
THE PERSONS REFERRED TO THEREIN, AND MAY BE ENFORCED BY SUCH PERSONS) NOTHING IN
THIS AGREEMENT SHALL CONFER ANY RIGHTS UPON ANY PERSON OR ENTITY WHICH IS NOT A
PARTY OR PERMITTED ASSIGNEE OF A PARTY TO THIS AGREEMENT.
8.9.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE.
EACH
PARTY HEREBY IRREVOCABLY WAIVES THE RIGHT TO ANY JURY TRIAL IN CONNECTION WITH
ANY ACTION OR PROCEEDING BROUGHT OR MAINTAINED IN CONNECTION WITH THIS
AGREEMENT.
8.10.
JURISDICTION.
ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE SUPERIOR COURTS OF THE STATE OF
CALIFORNIA SITTING IN ORANGE COUNTY, CALIFORNIA OR FEDERAL DISTRICT COURTS OF
THE UNITED STATES OF AMERICA FOR THE CENTRAL DISTRICT OF CALIFORNIA AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE PARTIES HEREBY ACCEPT FOR
THEMSELVES AND IN RESPECT OF THEIR PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS.
THE PARTIES IRREVOCABLY CONSENT TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE DELIVERY OF NOTICE AS PROVIDED IN THIS AGREEMENT, SUCH SERVICE
TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH DELIVERY.
8.11.
ENTIRE AGREEMENT.
THIS AGREEMENT (TOGETHER WITH THE
EXHIBITS AND THE COMPANY DISCLOSURE LETTER, AND THE OTHER DOCUMENTS DELIVERED
PURSUANT HERETO OR CONTEMPLATED HEREBY) CONSTITUTES THE ENTIRE AGREEMENT BETWEEN
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
42
SUPERSEDES ALL OTHER PRIOR AGREEMENTS AND UNDERSTANDINGS, BOTH WRITTEN AND ORAL,
BETWEEN THE PARTIES WITH