NOT HAVE BEEN FULFILLED WHEN AND AS REQUIRED TO BE FULFILLED,
THIS AGREEMENT MAY BE TERMINATED BY THE INITIAL PURCHASERS BY NOTICE TO THE
COMPANY AT ANY TIME AT OR PRIOR TO THE CLOSING DATE, AND SUCH TERMINATION SHALL
BE WITHOUT LIABILITY OF ANY PARTY TO ANY OTHER PARTY EXCEPT AS PROVIDED IN
SECTION 4 AND EXCEPT THAT SECTIONS 1, 6 AND 7 SHALL SURVIVE ANY SUCH TERMINATION
AND REMAIN IN FULL FORCE AND EFFECT.
SECTION 6.
OFFERING OF THE SECURITIES; RESTRICTIONS ON TRANSFER;
REPRESENTATIONS AND AGREEMENTS OF THE INITIAL PURCHASERS.
EACH INITIAL
PURCHASER, SEVERALLY AND NOT JOINTLY, REPRESENTS AND AGREES AS FOLLOWS:
(I)
QUALIFIED INSTITUTIONAL BUYER.
THE INITIAL PURCHASER IS A
QUALIFIED INSTITUTIONAL BUYER.
(II)
LIMITATION ON PURCHASERS.
SALES OF THE SECURITIES WILL BE MADE
ONLY TO A PERSON WHOM THE INITIAL PURCHASER REASONABLY BELIEVES IS (A) A
QUALIFIED INSTITUTIONAL BUYER, OR (B) A NON-UNITED STATES PERSON WITHIN THE
MEANING OF REGULATION S.
(III)
NO GENERAL SOLICITATION.
NO GENERAL SOLICITATION OR GENERAL
ADVERTISING (WITHIN THE MEANING OF RULE 502(C) UNDER THE SECURITIES ACT) WILL BE
USED IN CONNECTION WITH THE OFFERING OF THE SECURITIES.
(IV)
SUBSEQUENT PURCHASER NOTIFICATION.
THE INITIAL PURCHASER WILL
TAKE REASONABLE STEPS TO INFORM, AND CAUSE EACH OF ITS AFFILIATES TO TAKE
REASONABLE STEPS TO INFORM, PERSONS ACQUIRING SECURITIES FROM THE INITIAL
PURCHASER OR AN AFFILIATE THEREOF THAT (A) THE SECURITIES HAVE NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT, (B) THE SECURITIES ARE BEING SOLD TO
THEM WITHOUT REGISTRATION UNDER THE SECURITIES ACT IN RELIANCE ON RULE 144A OR
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT,
AS THE CASE MAY BE, AND (C) THE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED EXCEPT (1) TO THE COMPANY OR (2) IN ACCORDANCE WITH THE PROVISIONS
SET FORTH UNDER THE HEADING "TRANSFER RESTRICTIONS" IN THE OFFERING MEMORANDUM.
(V)
RESTRICTIONS ON TRANSFER.
THE TRANSFER RESTRICTIONS AND THE OTHER
PROVISIONS SET FORTH IN THE OFFERING MEMORANDUM, INCLUDING THE LEGEND REQUIRED
THEREBY, SHALL APPLY TO THE SECURITIES EXCEPT AS OTHERWISE AGREED BY THE COMPANY
AND THE INITIAL PURCHASERS.
(VI)
ADDITIONAL WRITTEN MATERIALS.
EACH INITIAL PURCHASER HEREBY
REPRESENTS AND AGREES THAT IT HAS NOT AND WILL NOT USE, AUTHORIZE USE OF, REFER
TO, OR PARTICIPATE IN THE PLANNING FOR USE OF, ANY WRITTEN COMMUNICATION THAT
CONSTITUTES AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY THE
SECURITIES OTHER THAN (I) A WRITTEN COMMUNICATION THAT CONTAINS NO "ISSUER
INFORMATION" (AS DEFINED IN RULE 433(H)(2) UNDER THE SECURITIES ACT) THAT WAS
NOT INCLUDED (INCLUDING THROUGH INCORPORATION BY REFERENCE) IN THE PRELIMINARY
OFFERING
11
MEMORANDUM, (II) ANY WRITTEN COMMUNICATION LISTED ON SCHEDULE A-1 OR PREPARED
PURSUANT TO SECTION 3(A)(XIII), (III) ANY WRITTEN COMMUNICATION PREPARED BY SUCH
INITIAL PURCHASER AND APPROVED BY THE COMPANY IN ADVANCE IN WRITING OR (IV) ANY
WRITTEN COMMUNICATION RELATING TO OR THAT CONTAINS THE TERMS OF THE SECURITIES,
INCLUDING THE INFORMATION INCLUDED IN THE FORM OF TERM SHEET ATTACHED AS
SCHEDULE A-2, AND/OR OTHER INFORMATION THAT WAS INCLUDED