IT UNDERSTANDS THAT THE COMPANY HAS
BEEN REPRESENTED IN THE PREPARATION, NEGOTIATION, AND EXECUTION OF THIS
AGREEMENT BY WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION, COUNSEL
TO THE COMPANY; (C) IT HAS EITHER BEEN REPRESENTED IN THE PREPARATION,
NEGOTIATION, AND EXECUTION OF THIS AGREEMENT BY LEGAL COUNSEL OF ITS OWN CHOICE,
OR HAS CHOSEN TO FOREGO SUCH REPRESENTATION BY LEGAL COUNSEL AFTER BEING ADVISED
TO SEEK SUCH LEGAL REPRESENTATION; (D) IT UNDERSTANDS THE TERMS AND CONSEQUENCES
OF THIS AGREEMENT AND IS FULLY AWARE OF ITS LEGAL AND BINDING EFFECT.
(N)
PUBLICITY.
THE COMPANY AND THE BUYER WILL MUTUALLY AGREE UPON THE
TEXT OF A PRESS RELEASE ANNOUNCING CERTAIN TERMS AND THE EXECUTION OF THIS
AGREEMENT AND RELATED AGREEMENTS.
THEREAFTER, IF EITHER PARTY DESIRES TO MAKE A
PUBLIC ANNOUNCEMENT CONCERNING THE TERMS OF THIS AGREEMENT OR A RELATED
AGREEMENT, SUCH PARTY SHALL GIVE REASONABLE PRIOR ADVANCE NOTICE OF THE PROPOSED
TEXT OF SUCH ANNOUNCEMENT TO THE OTHER PARTY FOR ITS PRIOR REVIEW AND APPROVAL,
SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD.
A PARTY SHALL NOT BE REQUIRED TO
SEEK THE PERMISSION OF THE OTHER PARTIES TO REPEAT ANY INFORMATION AS TO THE
TERMS OF THIS AGREEMENT OR A RELATED AGREEMENT THAT HAVE ALREADY BEEN PUBLICLY
DISCLOSED BY SUCH PARTY IN ACCORDANCE WITH THE FORGOING OR BY ANOTHER PARTY.
THE COMPANY AND BUYER ACKNOWLEDGE THAT EITHER OR BOTH OF THE COMPANY AND THE
BUYER MAY BE OBLIGATED TO DISCLOSE THE MATERIAL TERMS OF THIS AGREEMENT AND THE
RELATED AGREEMENTS TO THE PUBLIC AND TO FILE A COPY OF THIS AGREEMENT AND THE
RELATED AGREEMENTS WITH THE U. S. SECURITIES AND EXCHANGE COMMISSION AND EITHER
PARTY SHALL BE ENTITLED TO MAKE SUCH A REQUIRED FILING.
(O)
BOARD DESIGNATION AND OBSERVATION RIGHTS.
FOR SO LONG AS (I)
BUYER HOLDS FIVE PERCENT (5%) OR MORE OF THE COMPANY'S OUTSTANDING SHARES OF
COMMON STOCK (WITH SUCH PERCENTAGE CALCULATED ON A FULLY DILUTED BASIS AS IF ALL
OUTSTANDING CONVERTIBLE SECURITIES
WERE CONVERTED INTO COMMON STOCK) AND (II)
THE STRATEGIC ALLIANCE AGREEMENT BETWEEN THE BUYER AND THE COMPANY, DATED AS OF
THE DATE HEREOF, IS IN FULL FORCE AND EFFECT, BUYER SHALL HAVE THE RIGHT TO
DESIGNATE (X) AN OBSERVER TO THE COMPANY'S BOARD OF DIRECTORS OR (Y) ONE
REPRESENTATIVE TO SERVE ON THE COMPANY'S BOARD OF DIRECTORS AS A MEMBER OF THE
BOARD.
ANY SUCH OBSERVER OR REPRESENTATIVE MUST BE REASONABLY ACCEPTABLE TO THE
COMPANY.
BUYER'S DESIGNEE SHALL RECEIVE ALL NOTICES, DOCUMENTS, AND OTHER
INFORMATION IN THE SAME TIME AND MANNER AS SUCH INFORMATION IS SUPPLIED TO
MEMBERS OF THE BOARD. PRIOR TO RECEIVING ANY SUCH NOTICES, DOCUMENTS OR OTHER
INFORMATION, OR
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attending any meetings of the Company's Board of Directors, the designated
observer or representative must sign a non-disclosure agreement with the Company
that is in a form reasonably acceptable to the Company.
Such agreement shall
provide, among other things, that the observer or representative shall keep all
confidential information of the Company in confidence and shall not use such
information except for the