ACCOUNTANTS, COUNSEL, CONSULTANTS, ADVISORS AND AGENTS (THE
"REPRESENTATIVES") TO HOLD, IN CONFIDENCE, AT ALL TIMES UNLESS COMPELLED TO
DISCLOSE BY JUDICIAL OR ADMINISTRATIVE PROCESS OR BY OTHER REQUIREMENTS OF LAW,
ALL CONFIDENTIAL DOCUMENTS AND INFORMATION CONCERNING THE COMPANY AND ITS
AFFILIATES THAT HAVE BEEN FURNISHED TO THE INVESTOR OR ITS REPRESENTATIVES AS OF
THE DATE HEREOF.
THE INVESTOR AGREES THAT IT WILL NOT, AND WILL USE ITS
REASONABLE BEST EFFORTS TO CAUSE THE REPRESENTATIVES NOT TO, USE ANY
CONFIDENTIAL DOCUMENTS OR INFORMATION CONCERNING THE COMPANY FOR ANY PURPOSE
OTHER THAN IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
IF THIS AGREEMENT IS TERMINATED, THE INVESTOR WILL, AND WILL USE ITS REASONABLE
BEST EFFORTS TO CAUSE THE REPRESENTATIVES TO, DESTROY OR DELIVER TO THE COMPANY
ALL CONFIDENTIAL DOCUMENTS AND OTHER MATERIALS CONCERNING THE COMPANY, AND ALL
COPIES THEREOF, OBTAINED BY THE INVESTOR, OR ON ITS BEHALF, FROM THE COMPANY OR
ITS ADVISORS IN CONNECTION WITH THIS AGREEMENT.
(B)
THE COMPANY COVENANTS AND AGREES THAT
NEITHER IT NOR ANY OTHER PERSON ACTING ON ITS BEHALF AFTER THE EXECUTION HEREOF
WILL PROVIDE THE INVESTOR OR ITS AGENTS OR COUNSEL WITH ANY INFORMATION THAT THE
COMPANY BELIEVES CONSTITUTES MATERIAL NON-PUBLIC INFORMATION.
(C)
THE COMPANY UNDERSTANDS AND CONFIRMS THAT
THE INVESTOR SHALL BE RELYING ON THE FOREGOING COVENANT IN EFFECTING
TRANSACTIONS IN SECURITIES OF THE COMPANY.
5.13.
TRANSFER RESTRICTIONS.
(A)
THE INVESTOR SHALL NOT SELL OR OTHERWISE
TRANSFER ANY SERIES A PREFERRED SHARES, EXCEPT (I) TO AN AFFILIATE OF THE
INVESTOR (PROVIDED SUCH SALE OR OTHER TRANSFER IS OF AT LEAST 10,000 SERIES A
PREFERRED SHARES AT ANY GIVEN TIME), (II) TO ANY OTHER PERSON WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY'S BOARD OF DIRECTORS, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD, (III) TO THE COMPANY IN CONNECTION WITH ITS REDEMPTION OR
CONVERSION TO COMMON
14
STOCK PURSUANT TO THE CERTIFICATE OF DESIGNATION, OR (IV) IN CONNECTION WITH A
TENDER OFFER APPROVED BY THE COMPANY'S BOARD OF DIRECTORS.
NO TRANSFER
OTHERWISE PERMISSIBLE SHALL BE EFFECTIVE UNLESS A PERMITTED TRANSFEREE AGREES IN
WRITING EXPRESSLY FOR THE COMPANY'S BENEFIT TO BE BOUND BY THE PROVISIONS OF
THIS AGREEMENT.
(B)
THE COMPANY ACKNOWLEDGES AND AGREES THAT THE
INVESTOR MAY FROM TIME TO TIME MAKE A BONA FIDE PLEDGE, AND/OR GRANT A SECURITY
INTEREST IN SOME OR ALL, OF THE SERIES A PREFERRED SHARES PURSUANT TO A BONA
FIDE MARGIN AGREEMENT IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT AND, IF
REQUIRED UNDER THE TERMS OF SUCH AGREEMENT OR ACCOUNT, THE INVESTOR MAY DELIVER
PLEDGED OR SECURED SERIES A PREFERRED SHARES TO THE PLEDGEES OR SECURED
PARTIES.
SUCH A PLEDGE OR TRANSFER WOULD NOT BE SUBJECT TO APPROVAL OR CONSENT
OF THE COMPANY.
NO NOTICE SHALL BE REQUIRED OF SUCH PLEDGE.
ARTICLE VI
TRANSFER OF RESTRICTED SECURITIES
6.1.
LEGEND.
EACH CERTIFICATE OR INSTRUMENT
REPRESENTING RESTRICTED SECURITIES SHALL BE IMPRINTED WITH A LEGEND IN
SUBSTANTIALLY THE FOLLOWING FORM:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE