THE COMPANY'S
CAPITALIZATION THAT THE ENGAGED GROUP HAS INFORMED THE COMPANY IT DISAGREES
WITH, OR (C) A QUARTERLY EARNINGS PERFORMANCE THAT IS MATERIALLY BELOW THE
COMPANY'S PUBLICLY ANNOUNCED GUIDANCE.
3.
NON-DISPARAGEMENT.
DURING THE RESTRICTED PERIOD, THE COMPANY, ON THE ONE
HAND, AND EACH INVESTOR, ON THE OTHER HAND, WILL EACH REFRAIN FROM MAKING, AND
WILL CAUSE THEIR RESPECTIVE AFFILIATES AND ASSOCIATES AND ITS AND THEIR
RESPECTIVE REPRESENTATIVES (AS DEFINED BELOW) NOT TO MAKE, ANY STATEMENT OR
ANNOUNCEMENT THAT RELATES TO OR CONSTITUTES AN AD HOMINEM ATTACK ON, OR THAT
RELATES TO AND OTHERWISE DISPARAGES, IMPUGNS OR IS REASONABLY LIKELY TO DAMAGE
THE REPUTATION OF, (A) IN THE CASE OF STATEMENTS OR ANNOUNCEMENTS BY OR ON
BEHALF OF SUCH INVESTOR, THE COMPANY OR ANY OF ITS AFFILIATES OR ASSOCIATES OR
ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS OR EMPLOYEES OR ANY PERSON
WHO HAS SERVED AS AN OFFICER, DIRECTOR OR EMPLOYEE OF THE COMPANY OR ANY OF ITS
AFFILIATES OR ASSOCIATES AND (B) IN THE CASE OF STATEMENTS OR ANNOUNCEMENTS BY
OR ON BEHALF OF THE COMPANY, EACH INVESTOR AND ITS RESPECTIVE AFFILIATES AND
ASSOCIATES AND ITS AND THEIR RESPECTIVE PRINCIPALS, DIRECTORS, OFFICERS,
EMPLOYEES, MEMBERS OR GENERAL PARTNERS OR ANY PERSON WHO HAS SERVED AS SUCH.
THE FOREGOING WILL NOT PREVENT THE MAKING OF ANY FACTUAL STATEMENT IN ANY
COMPELLED TESTIMONY OR THE PRODUCTION OF INFORMATION, WHETHER BY LEGAL PROCESS,
SUBPOENA OR AS PART OF A RESPONSE TO A REQUEST FOR INFORMATION FROM ANY
GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER THE PARTY FROM WHOM INFORMATION IS
SOUGHT.
FOR PURPOSES OF THIS AGREEMENT, "REPRESENTATIVES", WITH RESPECT TO EACH
PARTY, SHALL MEAN SUCH PARTY'S PRINCIPALS, DIRECTORS, OFFICERS, EMPLOYEES,
GENERAL PARTNERS, MEMBERS, AGENTS, REPRESENTATIVES, ATTORNEYS AND ADVISORS
ACTING AT THE DIRECTION OR ON BEHALF OF SUCH PARTY.
4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY REPRESENTS AND
WARRANTS TO THE ENGAGED GROUP THAT:
(A) THE COMPANY HAS THE CORPORATE POWER AND
AUTHORITY TO EXECUTE THIS AGREEMENT AND TO BIND IT THERETO; (B) THIS AGREEMENT
HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY,
CONSTITUTES A VALID AND BINDING OBLIGATION AND AGREEMENT OF THE COMPANY AND IS
ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS
ENFORCEMENT THEREOF MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM, FRAUDULENT CONVEYANCE OR SIMILAR LAWS GENERALLY
AFFECTING THE RIGHTS OF CREDITORS AND SUBJECT TO GENERAL EQUITY PRINCIPLES; AND
(C) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY THE COMPANY
DOES NOT AND WILL NOT (I) VIOLATE OR CONFLICT WITH ANY LAW, RULE, REGULATION,
ORDER, JUDGMENT OR DECREE APPLICABLE TO THE COMPANY; (II) RESULT IN ANY BREACH
OR VIOLATION OF OR CONSTITUTE A DEFAULT (OR AN EVENT THAT WITH NOTICE OR LAPSE
OF TIME OR BOTH COULD CONSTITUTE SUCH A BREACH, VIOLATION OR DEFAULT) UNDER OR
PURSUANT TO, OR RESULT IN
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THE LOSS OF A MATERIAL BENEFIT UNDER, OR GIVE ANY RIGHT OF TERMINATION,
AMENDMENT, ACCELERATION OR CANCELLATION OF, ANY ORGANIZATIONAL DOCUMENT,
AGREEMENT, CONTRACT, COMMITMENT, UNDERSTANDING OR ARRANGEMENT TO WHICH