Company:
19700 Fairchild Road, Suite 230
Irvine, California 92612
fax: (949) 955-0086
Attention: Chief Financial Officer
with a copy to:
Christopher D. Ivey, Esq.
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
fax: (949) 725-4100
If to the Purchaser, at the address of such Purchaser set forth in Schedule I,
and
with a copy to:
Paul N. Silverstein, Esq.
Andrews Kurth LLP
450 Lexington Avenue
New York, NY 10017
fax: (212) 850-2929
SECTION 7.06.
GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA
WITHOUT REGARD FOR CONFLICTS OF LAWS OR CHOICE OF LAWS PRINCIPLES.
SECTION 7.07.
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING THE
SCHEDULES AND EXHIBITS HERETO, ALONG WITH THE NOTE AND THE SECURITY AND PLEDGE
AGREEMENT, CONSTITUTES THE SOLE AND ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF.
ALL SCHEDULES AND EXHIBITS HERETO ARE HEREBY
INCORPORATED HEREIN BY REFERENCE.
THERE ARE NO OTHER AGREEMENTS OF THE PARTIES
AND NO PARTY IS RELYING ON ANY REPRESENTATIONS OF THE OTHER NOT EXPRESSLY SET
FORTH HEREIN OR ANY ANCILLARY DOCUMENT RELATED HERETO OR THERETO.
ALL SCHEDULES
AND EXHIBITS HEREBY ARE HEREBY INCORPORATED HEREIN BY REFERENCE.
SECTION 7.08.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN TWO OR
MORE COUNTERPARTS, EACH OF WHICH WILL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH
TOGETHER WILL CONSTITUTE ONE AND THE SAME INSTRUMENT.
SECTION 7.09.
AMENDMENTS.
THIS AGREEMENT MAY NOT BE AMENDED OR
MODIFIED, AND NO PROVISIONS HEREOF MAY BE WAIVED, WITHOUT THE WRITTEN CONSENT OF
THE COMPANY AND THE HOLDER OF THE NOTE.
23
SECTION 7.10.
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT WILL
BE DECLARED VOID OR UNENFORCEABLE BY ANY JUDICIAL OR ADMINISTRATIVE AUTHORITY,
THE VALIDITY OF ANY OTHER PROVISION AND OF THE ENTIRE AGREEMENT WILL NOT BE
AFFECTED THEREBY.
SECTION 7.11.
TITLES AND SUBTITLES.
THE TITLES AND SUBTITLES USED IN
THIS AGREEMENT ARE FOR CONVENIENCE ONLY AND ARE NOT TO BE CONSIDERED IN
CONSTRUING OR INTERPRETING ANY TERM OR PROVISION OF THIS AGREEMENT.
SECTION 7.12.
NO PUBLICITY.
EXCEPT AS EXPRESSLY PROVIDED BELOW, NO
PARTY WILL MAKE, ISSUE OR RELEASE ANY PUBLIC ANNOUNCEMENT, PRESS RELEASE,
STATEMENT OR ACKNOWLEDGMENT (COLLECTIVELY, "PUBLIC ANNOUNCEMENT") OF THE
EXISTENCE OF, OR REVEAL PUBLICLY THE TERMS, CONDITIONS AND STATUS OF, THE
TRANSACTIONS CONTEMPLATED HEREBY, WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER
PARTY AS TO THE CONTENT AND TIME OF RELEASE OF AND THE MEDIA IN WHICH SUCH
PUBLIC ANNOUNCEMENT IS TO BE MADE; PROVIDED, HOWEVER, THAT IN THE CASE OF A
PUBLIC ANNOUNCEMENT WHICH A PARTY IS REQUIRED BY LAW TO MAKE, ISSUE OR RELEASE,
THE MAKING, ISSUING OR RELEASING OF ANY SUCH PUBLIC ANNOUNCEMENT, BY A PARTY SO
REQUIRED TO DO SO WILL NOT CONSTITUTE A BREACH IF SUCH PARTY HAS GIVEN, TO THE
EXTENT REASONABLY POSSIBLE, NOT LESS THAN TWO (2) BUSINESS DAYS PRIOR NOTICE TO
THE OTHER PARTY, AND HAS ATTEMPTED, TO THE EXTENT REASONABLY POSSIBLE, TO ALLOW
THE OTHER PARTY TO REVIEW AND