IN A
TRANSACTION NOT INVOLVING A PUBLIC OFFERING AND THAT UNDER SUCH LAWS AND
APPLICABLE REGULATIONS SUCH COMPANY COMMON STOCK MAY BE RESOLD WITHOUT
REGISTRATION UNDER THE ACT ONLY PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE ACT.
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT COVERING THE
COMMON STOCK OR AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT, THE
COMMON STOCK MUST BE HELD INDEFINITELY.
IN THIS CONNECTION, SUCH INVESTOR
REPRESENTS THAT IT IS FAMILIAR WITH SEC RULE 144, AS PRESENTLY IN EFFECT, AND
UNDERSTANDS THE RESALE LIMITATIONS IMPOSED THEREBY AND BY THE ACT, INCLUDING
WITHOUT LIMITATION THE RULE 144 CONDITION THAT CURRENT INFORMATION ABOUT THE
COMPANY BE AVAILABLE TO THE PUBLIC.
(D)
THE PURCHASER UNDERSTANDS THAT THE CERTIFICATES EVIDENCING THE
COMPANY COMMON STOCK ACQUIRED PURSUANT TO THIS AGREEMENT MAY BEAR LEGENDS TO THE
FOLLOWING EFFECT, WHICH LEGENDS SHALL BE REMOVED, UPON THE REQUEST OF THE
PURCHASER AND TO THE EXTENT PERMITTED BY APPLICABLE SECURITIES LAWS, UPON THE
EFFECTIVENESS OF A REGISTRATION STATEMENT FILED WITH THE SEC PURSUANT TO THE
REGISTRATION RIGHTS AGREEMENT:
"The securities represented hereby have not been registered under the Securities
Act of 1933, as amended or any state securities laws and neither the securities
nor any interest therein may be
offered, sold, transferred, pledged,
hypothecated or otherwise disposed of except pursuant to an effective
registration under such act or an available exemption therefrom."
ARTICLE VI
COVENANTS
SECTION 6.01.
ACCESS TO INFORMATION.
(A)
FROM AND AFTER THE DATE HEREOF AND
PROVIDED THAT THE PURCHASER (AND ITS SUBSIDIARIES, TAKEN TOGETHER) HOLDS,
DIRECTLY OR INDIRECTLY NOT LESS THAN 10% OF THE ISSUED AND OUTSTANDING COMPANY
COMMON STOCK (CALCULATED ON A FULLY DILUTED BASIS), THE COMPANY WILL, AND WILL
CAUSE THE SUBSIDIARIES, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, COUNSEL, ADVISORS AND REPRESENTATIVES (COLLECTIVELY, THE
"COMPANY REPRESENTATIVES")
-39-
TO, PROVIDE PURCHASER AND ITS OFFICERS, EMPLOYEES, COUNSEL, ADVISORS AND
REPRESENTATIVES (COLLECTIVELY, THE "PURCHASER REPRESENTATIVES") REASONABLE
ACCESS, DURING NORMAL BUSINESS HOURS AND UPON REASONABLE NOTICE, TO THE
OFFICERS, EMPLOYEES, OFFICES AND OTHER FACILITIES AND TO THE BOOKS AND RECORDS
OF THE COMPANY AND THE SUBSIDIARIES, AS WILL PERMIT PURCHASER TO MAKE
INSPECTIONS OF SUCH AS ANY OF THEM MAY REASONABLY REQUIRE AND WILL CAUSE THE
COMPANY REPRESENTATIVES AND THE SUBSIDIARIES TO FURNISH PURCHASER AND THE
PURCHASER REPRESENTATIVES TO THE EXTENT AVAILABLE WITH SUCH OTHER INFORMATION
WITH RESPECT TO THE BUSINESS, OPERATIONS AND PROSPECTS OF THE COMPANY AND THE
SUBSIDIARIES AS PURCHASER MAY FROM TIME TO TIME REASONABLY REQUEST; PROVIDED,
HOWEVER, THAT THE COMPANY SHALL NOT BE REQUIRED TO PROVIDE THE PURCHASER OR THE
PURCHASER REPRESENTATIVES ACCESS TO ANY SUCH INFORMATION IF THE COMPANY
REASONABLY BELIEVES, UPON ADVICE OF COUNSEL, THAT NOT PROVIDING SUCH INFORMATION
TO THE PURCHASER OR THE PURCHASER REPRESENTATIVES IS ADVISABLE:
(I) TO PRESERVE
ATTORNEY-CLIENT PRIVILEGE, (II) TO PROTECT PROPRIETARY INFORMATION RELATING TO
DEPOMED DEVELOPMENT, LTD. OR (III) DUE TO A CONFLICT OF INTEREST BETWEEN THE
COMPANY AND THE PURCHASER.
IN THE EVENT OF TERMINATION OF THIS AGREEMENT FOR
ANY REASON, PURCHASER WILL, AND WILL