A STANDBY PURCHASE AGREEMENT (THE "BACKSTOP AGREEMENT"),
(A) IN SUBSTANTIAL COMPLIANCE WITH THE TERMS AND CONDITIONS SET FORTH IN THAT
CERTAIN TERM SHEET ATTACHED HERETO AS EXHIBIT F (THE "BACKSTOP TERM SHEET"), AND
(B) OTHERWISE IN FORM AND SUBSTANCE MUTUALLY SATISFACTORY TO THE INVESTOR AND
THE COMPANY, WHICH BACKSTOP AGREEMENT SHALL SET FORTH THE TERMS AND CONDITIONS
UPON WHICH AN AFFILIATE OF THE INVESTOR SHALL PROVIDE A BACKSTOP COMMITMENT (AS
DEFINED IN THE BACKSTOP TERM SHEET) IN CONNECTION WITH THE RIGHTS OFFERING.
f.
Confidentiality Of Evaluation
Material Produced to the Investor; Standstill.
(I)
NOTWITHSTANDING ANYTHING CONTAINED IN
THIS AGREEMENT TO THE CONTRARY, THE INVESTOR SHALL TREAT ALL "CONFIDENTIAL
INFORMATION" (AS DEFINED IN THE CONFIDENTIALITY, NON-DISCLOSURE AND STANDSTILL
AGREEMENT BETWEEN THE PARTIES DATED FEBRUARY 9, 2009 (THE "CONFIDENTIALITY
AGREEMENT")) PROVIDED BY THE COMPANY TO INVESTOR UNDER THE CONFIDENTIALITY
AGREEMENT, AND ALL INFORMATION PROVIDED BY THE COMPANY TO THE INVESTOR PURSUANT
TO THE SPA, AS CONFIDENTIAL INFORMATION IN ACCORDANCE WITH THE TERMS BELOW AND
THE TERMS OF SECTIONS 2 AND 3 OF THE CONFIDENTIALITY AGREEMENT, WHICH TERMS ARE
EXPRESSLY INCORPORATED HEREIN.
(II)
WITHIN FIVE (5) BUSINESS DAYS OF THE DATE
HEREOF, INVESTOR WILL RETURN OR DESTROY ALL INFORMATION PROVIDED TO IT THAT, TO
ITS KNOWLEDGE, CONSTITUTES CONFIDENTIAL INFORMATION, AND WILL CERTIFY TO THE
COMPANY IN WRITING THAT IT HAS COMPLIED WITH THE FOREGOING COVENANT; PROVIDED
THAT THE INVESTOR MAY RETAIN ONE COPY OF THE CONFIDENTIAL INFORMATION FOR
CONTINGENCY PURPOSES PROVIDED THAT SUCH COPY SHALL BE SEGREGATED FROM THE
INVESTOR'S NORMAL BUSINESS RECORDS AND MAY ONLY BE ACCESSED FOR THE PURPOSE OF
ESTABLISHING COMPLIANCE WITH THIS AGREEMENT OR IN CIRCUMSTANCES WHERE
THIS AGREEMENT OR THE TRANSACTIONS ARE THE SUBJECT OF LITIGATION OR OTHERWISE
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
FURTHERMORE, THE INVESTOR AND
ITS PROFESSIONAL ADVISORS MAY RETAIN DATA OR ELECTRONIC RECORDS
CONTAINING CONFIDENTIAL INFORMATION FOR THE
18
PURPOSES OF BACKUP AND DATA RECOVERY SO LONG AS SUCH DATA OR RECORDS, TO THE
EXTENT NOT PERMANENTLY DELETED OR OVERWRITTEN IN THE ORDINARY COURSE OF
BUSINESS, ARE NOT ACCESSIBLE IN THE ORDINARY COURSE OF BUSINESS AND ARE NOT
ACCESSED OR USED EXCEPT AS REQUIRED FOR BACKUP OR DATA RECOVERY PURPOSES.
ANY CONFIDENTIAL INFORMATION RETAINED BY THE INVESTOR OR ITS PROFESSIONAL
ADVISORS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 4(F)(II) SHALL REMAIN
SUBJECT TO THE CONFIDENTIALITY TERMS SET FORTH IN SECTION 4(F)(I) OF THIS
AGREEMENT FOR SO LONG AS SUCH CONFIDENTIAL INFORMATION IS RETAINED.
(III)
THE INVESTOR AGREES THAT, UNLESS
SPECIFICALLY INVITED IN WRITING TO DO SO BY THE COMPANY, FOR A PERIOD OF TWO
(2) YEARS FROM THE DATE OF THIS AGREEMENT, NEITHER THE INVESTOR NOR ANY PERSON
OR ENTITY DIRECTLY OR INDIRECTLY CONTROLLING THE INVESTOR OR CONTROLLED BY THE
INVESTOR OR UNDER COMMON CONTROL WITH THE INVESTOR (ALL SUCH PERSONS AND
ENTITIES, TOGETHER WITH THE INVESTOR, COLLECTIVELY, THE "STERLING GROUP") ACTING
ALONE OR AS PART OF ANY GROUP, WILL, OR WILL ENCOURAGE OR ASSIST OTHERS TO,
DIRECTLY OR INDIRECTLY: (I) ACQUIRE, OFFER OR PROPOSE TO ACQUIRE, OR AGREE OR