BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING CREDITORS' AND
CONTRACTING PARTIES' RIGHTS GENERALLY AND EXCEPT AS ENFORCEABILITY MAY BE
SUBJECT TO GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER SUCH
ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW) AND EXCEPT AS
THE INDEMNIFICATION AGREEMENTS OF THE INVESTORS HEREIN MAY BE LEGALLY
UNENFORCEABLE.
4.4
SHORT POSITION.
THE INVESTOR HAS NOT
ESTABLISHED ANY HEDGE OR OTHER POSITION IN THE COMMON STOCK THAT IS OUTSTANDING
ON THE CLOSING DATE AND IS DESIGNED TO OR COULD REASONABLY BE EXPECTED TO LEAD
TO OR RESULT IN A DISPOSITION BY THE INVESTOR OR ANY OTHER PERSON OR ENTITY.
FOR PURPOSES HEREOF, A "HEDGE OR OTHER POSITION" WOULD INCLUDE, WITHOUT
LIMITATION, EFFECTING ANY SHORT SALE OR HAVING IN EFFECT ANY SHORT POSITION
(WHETHER OR NOT SUCH SALE OR POSITION IS AGAINST THE BOX AND REGARDLESS OF WHEN
SUCH POSITION WAS ENTERED INTO) OR ANY PURCHASE, SALE OR GRANT OF ANY RIGHT
(INCLUDING, WITHOUT LIMITATION, ANY PUT OR CALL OPTION) WITH RESPECT TO THE
COMMON STOCK OR WITH RESPECT TO ANY SECURITY (OTHER THAN A BROAD-BASED MARKET
BASKET OR INDEX) THAT INCLUDES, RELATES TO OR DERIVES ANY SIGNIFICANT PART OF
ITS VALUE FROM THE COMMON STOCK.
FOR THE AVOIDANCE OF DOUBT, NOTWITHSTANDING
ANYTHING ELSE CONTAINED HEREIN, THE REPRESENTATIONS MADE IN THIS SECTION 4.4 ARE
MADE ONLY AS OF THE DATE OF EXECUTION OF THIS AGREEMENT.
4.5
NO INVESTMENT, TAX OR LEGAL ADVICE.
THE
INVESTOR UNDERSTANDS THAT NOTHING IN THE SEC REPORTS, THIS AGREEMENT, OR ANY
OTHER MATERIALS PRESENTED TO THE INVESTOR IN CONNECTION WITH THE PURCHASE AND
SALE OF THE SECURITIES CONSTITUTES LEGAL, TAX OR INVESTMENT ADVICE.
THE
INVESTOR HAS CONSULTED SUCH LEGAL, TAX AND INVESTMENT ADVISORS AS IT, IN ITS
SOLE DISCRETION, HAS DEEMED NECESSARY OR APPROPRIATE IN CONNECTION WITH ITS
PURCHASE OF SECURITIES.
4.6
CONFIDENTIAL INFORMATION.
THE INVESTOR
COVENANTS THAT FROM THE DATE HEREOF IT WILL MAINTAIN IN CONFIDENCE ALL MATERIAL
NON-PUBLIC INFORMATION REGARDING THE COMPANY RECEIVED BY THE INVESTOR FROM THE
COMPANY (OTHER THAN DISCLOSURE OF SUCH INFORMATION TO ITS REPRESENTATIVES OR
AGENTS), INCLUDING THE RECEIPT AND CONTENT OF ANY SUSPENSION NOTICE (AS DEFINED
IN SECTION 6.2(C)) UNTIL SUCH INFORMATION (A) BECOMES GENERALLY PUBLICLY
AVAILABLE OTHER THAN THROUGH A VIOLATION OF THIS PROVISION BY THE INVESTOR OR
ITS AGENTS OR (B) IS REQUIRED TO BE DISCLOSED IN LEGAL PROCEEDINGS (SUCH AS A
REQUEST OF A REGULATORY AUTHORITY, BY DEPOSITION, INTERROGATORY, REQUEST FOR
DOCUMENTS, SUBPOENA, CIVIL INVESTIGATION DEMAND, FILING WITH ANY GOVERNMENTAL
AUTHORITY, REGULATORY BODY OR SIMILAR PROCESS); PROVIDED, HOWEVER, THAT BEFORE
MAKING ANY DISCLOSURE IN RELIANCE ON THIS SECTION 4.6 (OTHER THAN DISCLOSURE OF
SUCH INFORMATION TO ITS REPRESENTATIVES OR AGENTS), THE INVESTOR WILL GIVE THE
COMPANY PRIOR WRITTEN NOTICE, AS SOON AS
13
REASONABLY PRACTICABLE AND IF NOT PROHIBITED UNDER LAW OR REGULATION, SPECIFYING
THE CIRCUMSTANCES GIVING RISE THERETO IN ORDER TO PERMIT THE COMPANY TO SEEK
PROTECTIVE ORDERS OR TAKE OTHER ACTION WITH RESPECT TO SUCH COMPELLED
DISCLOSURE, AND WILL FURNISH ONLY THAT PORTION OF THE NON-PUBLIC