to be necessary, and (e) is an "accredited investor"
as that term is defined under Rule 501(a) under Regulation D under the
Securities Act (the provisions of which are known to the undersigned).
The undersigned further represents that it has the full right, power, legal
capacity and authority to enter into this agreement and to complete the
transactions herein contemplated and that this agreement constitutes a valid and
binding obligation of the undersigned, and is enforceable against the
undersigned in accordance with its terms.
2
Confidentiality
THIS AGREEMENT MAY BE DEEMED TO CONSTITUTE MATERIAL NON-PUBLIC INFORMATION OF
THE COMPANY. SECURITIES LAWS RESTRICT ANY PERSON WHO HAS MATERIAL NON-PUBLIC
INFORMATION CONCERNING THE COMPANY (INCLUDING THE MATTERS WHICH ARE THE SUBJECT
OF THIS AGREEMENT) FROM PURCHASING OR SELLING SECURITIES OF THE COMPANY OR FROM
COMMUNICATING SUCH INFORMATION TO ANY OTHER PERSON. THE UNDERSIGNED (BY
ACCEPTANCE OF THIS AGREEMENT) AGREES THAT IT SHALL NOT PURCHASE OR SELL
SECURITIES OF THE COMPANY WITH THE KNOWLEDGE OF A MATERIAL FACT OR MATERIAL
CHANGE OR PROSPECTIVE MATERIAL CHANGE IN THE BUSINESS OR AFFAIRS OF THE COMPANY
THAT IT KNEW OR OUGHT REASONABLY TO HAVE KNOWN HAD NOT BEEN GENERALLY DISCLOSED.
THE UNDERSIGNED (BY RECEIPT OF THIS AGREEMENT) AGREES TO KEEP THE COMPANY'S
CONFIDENTIAL INFORMATION (INCLUDING THE INFORMATION CONTAINED HEREIN) STRICTLY
CONFIDENTIAL AND NOT TO DISCLOSE SUCH CONFIDENTIAL INFORMATION (INCLUDING THE
EXISTENCE OR CONTENTS OF THIS AGREEMENT) TO ANYONE OTHER THAN ITS ADVISORS,
INCLUDING COUNSEL AND ACCOUNTANTS, FOR THE SOLE PURPOSE OF EVALUATING THE
MATTERS DESCRIBED HEREIN. THE UNDERSIGNED AGREES TO USE THE INFORMATION
CONTAINED HEREIN ONLY FOR THE PURPOSE OF EVALUATION THE MATTERS DESCRIBED IN
THIS AGREEMENT AND FOR NO OTHER PURPOSE. ACCORDINGLY, THE UNDERSIGNED AGREES NOT
TO PURCHASE, SELL, HYPOTHECATE, PLEDGE OR HEDGE ANY SECURITIES OF THE COMPANY
UNTIL SUCH TIME AS THE MATTERS DESCRIBED IN THIS AGREEMENT ARE PUBLICLY
DISCLOSED BY THE COMPANY OR OF NO FORCE OR EFFECT.
General Matters
The undersigned hereby agrees that the arrangements and restrictions set forth
herein shall not give rise to any breach by the Company of the Company's
obligations under the Warrant.
Notwithstanding anything to the contrary herein, this agreement and the
restrictions and covenants set forth herein, shall be of no force or effect if
the Company does not consummate the Initial Closing (as defined in the Purchase
Agreement) of the New Financing on or before June 30, 2012
This agreement may be signed in counterparts and shall become effective as if
executed in a single, complete document upon its execution by the parties.
Facsimile signatures of the undersigned parties will have the same force and
effect as original signatures. This agreement contains the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all prior arrangements and understandings between the parties, either written or
oral, with respect to its subject matter. The provisions of this agreement shall
not be waived, modified, amended, altered or supplemented, in whole or in part,
except by a writing signed by all the parties