AND WARRANTS THAT, AS OF THE DATE
HEREOF, IT IS THE BENEFICIAL OWNER OF SUCH NUMBER OF SHARES OF COMMON STOCK AS
ARE SET FORTH WITH RESPECT TO SUCH HCP INVESTOR ON SCHEDULE A OF THIS AGREEMENT.
Section 3.2
Confidentiality.
The Company
has no obligation to furnish Confidential Information to the HCP Investors or
its representatives by virtue of this Agreement except for Confidential
Information provided to the HCP Nominees in their capacity as directors (and as
nominees for director) of the Company.
Each of the HCP Investors hereby
acknowledges that it is aware that the United States securities laws prohibit
any person who has material, non-public information with respect to the Company
from transacting in the securities of the Company or from communicating such
information to any other person under circumstances in which it is reasonably
foreseeable that such person is likely to
5
transact in such securities.
Each of the HCP Investors agrees to comply with
such laws and recognizes that the Company would be damaged by its
non-compliance.
The term "Confidential Information" shall mean any information
that is confidential to the Company; provided that Confidential Information will
not include information which (i) becomes lawfully available to the public other
than as a result of a disclosure by the HCP Investors or its representatives,
(ii) was lawfully available to the HCP Investors on a non-confidential basis
prior to its disclosure to the Company or its representatives by the Company or
on its behalf or (iii) lawfully becomes available to the HCP Investors on a
non-confidential basis from a source other than the Company or the Company's
representatives or agents, provided that such source is not bound by a
confidentiality agreement with the Company of which the HCP Investors have been
made aware.
Section 3.3
Remedies.
(A)
EACH PARTY HERETO HEREBY ACKNOWLEDGES AND
AGREES, ON BEHALF OF ITSELF AND ITS AFFILIATES, THAT IRREPARABLE HARM WOULD
OCCUR IN THE EVENT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN
ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED.
IT IS
ACCORDINGLY AGREED THAT THE PARTIES WILL BE ENTITLED TO SPECIFIC RELIEF
HEREUNDER, INCLUDING AN INJUNCTION OR INJUNCTIONS TO PREVENT AND ENJOIN BREACHES
OF THE PROVISIONS OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND
PROVISIONS HEREOF IN ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY IN THE STATE
OF NEW YORK, IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED AT
LAW OR IN EQUITY.
ANY REQUIREMENTS FOR THE SECURING OR POSTING OF ANY BOND WITH
SUCH REMEDY ARE HEREBY WAIVED.
(B)
EACH PARTY HERETO AGREES, ON BEHALF OF
ITSELF AND ITS AFFILIATES, THAT ANY ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY WILL BE
BROUGHT SOLELY AND EXCLUSIVELY IN ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY
IN THE STATE OF NEW YORK (AND THE PARTIES AGREE NOT TO COMMENCE ANY ACTION, SUIT
OR PROCEEDING RELATING THERETO EXCEPT IN SUCH COURTS),