Common use of Disclosure; Confidentiality Clause in Contracts

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement to the contrary, and without implication that the contrary would otherwise be true, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, no Deerfield Lender nor any affiliate of any Deerfield Lender shall have (unless expressly agreed to by such particular Deerfield Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield Lender or customary oral (confirmed by e-mail) “wall cross” agreement (it being understood and agreed that no Deerfield Lender may bind any other Deerfield Lender with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware of, any information regarding the Borrower.

Disclosure; Confidentiality. On or before 8:00 7:00 a.m., New York time, on the first (1st) Business Day following after the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation Agreement and the other Transaction Documents entered into pursuant to, or in connection with, this AgreementFifth Amendment, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) Fifth Amendment and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from From and after the filing of the Announcing 8-K Filing, it the Borrower shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement Agreement, the Fifth Amendment or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement to the contrary, contrary and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, that no Deerfield Lender nor any affiliate of any Deerfield Lender Purchaser shall have (unless expressly agreed to by such a particular Deerfield Lender Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield Lender Purchaser or customary oral (confirmed by e-mail) “wall wall-cross” agreement (it being understood and agreed that no Deerfield Lender Purchaser may bind any other Deerfield Lender Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or the Guarantor pursuant to the terms of this Agreement or any of the other Transaction Documents or anything else to the contrary contained herein or therein, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or the Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any obligation of the Borrower or the Guarantor to provide such notice to such Purchaser under the Facility Agreement or this Agreement shall be deemed waived), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this AgreementDecember 28, 2020, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this AgreementAmendment, disclosing the A&R Certificate effectiveness of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this AgreementAmendment, attaching this Agreement Amendment (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) ), and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-non public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement Amendment or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement Amendment to the contrary, and without implication that the contrary would otherwise be true, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, no Deerfield Lender nor any affiliate of any Deerfield Lender shall have (unless expressly agreed to by such particular Deerfield Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield Lender or customary oral (confirmed by e-mail) “wall cross” agreement (it being understood and agreed that no Deerfield Lender may bind any other Deerfield Lender with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware of, any information regarding the Borrower.

Disclosure; Confidentiality. On or before 8:00 7:00 a.m., New York time, on the first (1st) Business Day following after the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from From and after the filing of the Announcing 8-K Filing, it the Borrower shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement to the contrary, contrary and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, that no Deerfield Lender nor any affiliate of any Deerfield Lender Purchaser shall have (unless expressly agreed to by such a particular Deerfield Lender Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield Lender Purchaser or customary oral (confirmed by e-mail) “wall wall-cross” agreement (it being understood and agreed that no Deerfield Lender Purchaser may bind any other Deerfield Lender Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor pursuant to the terms of this Agreement or any of the other Loan Documents or anything else to the contrary contained herein or therein, (a), subject to clause (b) below, each of the Borrower and Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Agreement shall be deemed waived), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, disclosing the A&R Certificate effectiveness of Designation this Agreement and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, providing the disclosure contemplated by Section 3.02(p), attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom, other than redactions of the schedules to the Guaranty and Security Agreement as permitted under Item 601(a)(5) of Regulation S-K) and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement to the contrary, and without implication that the contrary would otherwise be true, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, no Deerfield Lender nor any affiliate of any Deerfield Lender shall have (unless expressly agreed to by such particular Deerfield Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield Lender or customary oral (confirmed by e-mail) “wall cross” agreement (it being understood and agreed that no Deerfield Lender may bind any other Deerfield Lender with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware of, any information regarding the Borrower.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from From and after the filing of the Announcing 8-K Filing, it the Borrower shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement to the contrary, contrary and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, that no Deerfield Lender nor any affiliate of any Deerfield Lender Purchaser shall have (unless expressly agreed to by such a particular Deerfield Lender Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield Lender Purchaser or customary oral (confirmed by e-mail) “wall wall-cross” agreement (it being understood and agreed that no Deerfield Lender Purchaser may bind any other Deerfield Lender Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or the Guarantor pursuant to the terms of this Agreement or any of the other Transaction Documents or anything else to the contrary contained herein or therein, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or the Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any obligation of the Borrower or the Guarantor to provide such notice to such Purchaser under the Facility Agreement or this Agreement shall be deemed waived), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 8:00 a.m.2:30 p.m.., New York time, on the first Business Day following the date of this AgreementSeptember 5, 2018, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this AgreementAmendment, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) Amendment and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) on or prior to the date hereof and that is not otherwise publicly disclosed at or prior to the time of such filing (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from From and after the filing of the Announcing 8-K Filing, it the Borrower shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement Amendment or otherwise on or prior to the date hereof, including with respect to the transactions described in the Borrower’s press release dated September 4, 2018. Notwithstanding anything contained in this Agreement Amendment to the contrary, contrary and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, that no Deerfield Lender nor any affiliate of any Deerfield Lender Purchaser shall have (unless expressly agreed to by such a particular Deerfield Lender Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield Lender Purchaser or customary oral (confirmed by e-mail) “wall wall-cross” agreement (it being understood and agreed that no Deerfield Lender Purchaser may bind any other Deerfield Lender Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or the Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or the Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any obligation of the Borrower or the Guarantor to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 8:00 7:00 a.m., New York time, on the first Business Day following the date of this AgreementAmendment, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this AgreementAmendment, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) Amendment and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following If the Effective Date and (ii) the date this Agreement is terminatedshall not have occurred on or prior to June 30, 2019, then no later than 7:00 a.m. on July 1, 2019, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8disclosing such non-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminatedoccurrence. The Borrower represents and warrants that, from From and after the filing of the Announcing 8-K Filing, it the Borrower shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield Lender Purchaser (or any Deerfield LenderPurchaser’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement Amendment or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement Amendment to the contrary, contrary and without implication that the contrary would otherwise be true, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, no Deerfield Lender nor any affiliate of any Deerfield Lender Purchaser shall have (unless expressly agreed to by such a particular Deerfield Lender Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield Lender Purchaser or customary oral (confirmed by e-mail) “wall wall-cross” agreement (it being understood and agreed that no Deerfield Lender Purchaser may bind any other Deerfield Lender Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or the Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Announcing Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or the Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any obligation of the Borrower or the Guarantor to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation Exchange Warrant, the Facility Agreement (including the refinancing transactions to which it relates), the RRA and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, disclosing the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this AgreementAgreement not otherwise filed) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield the Lender (or any Deerfield the Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield the Lender (or any Deerfield the Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement to the contrary, and without implication that the contrary would otherwise be true, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, no Deerfield neither the Lender nor any affiliate of any Deerfield the Lender shall have (unless expressly agreed to by such particular Deerfield the Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield the Lender or customary oral (confirmed by e-mail) “wall cross” agreement (it being understood and agreed that no Deerfield Lender may bind any other Deerfield Lender with respect thereto))agreement, any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware of, any information regarding the Borrower. For the avoidance of doubt, the Borrower’s obligations under this Section 3.03 shall not be deemed to limit or otherwise modify the Borrower’s obligations under Section 5.8 of the Facility Agreement.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement Amendment to the contrary, contrary and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that, from and after the Announcing 8-K Filing, that no Deerfield Lender nor any affiliate of any Deerfield Lender Purchaser shall have (unless expressly agreed to by such a particular Deerfield Lender Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield Lender Purchaser or customary oral (confirmed by e-mail) “wall wall-cross” agreement (it being understood and agreed that no Deerfield Lender Purchaser may bind any other Deerfield Lender Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and Guarantor shall not, and shall cause each of its officers, directors, employees and agents to not on behalf of the Borrower, provide any Purchaser with any material non-public information with respect to the Borrower without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication). In the absence of any such indication by Borrower to a Purchaser, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic information with respect to the Borrower.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from and after the filing of the Announcing 8-K FilingFiling (as defined below), it shall have publicly disclosed all material, non-public information MNPI (if anyas defined below) provided or made available to any Deerfield the Lender (or any Deerfield the Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Agreement to the contrary, and without implication that the contrary would otherwise be true, the Borrower expressly acknowledges and agrees that, from and after the filing of the Announcing 8-K Filing, no Deerfield neither the Lender nor any affiliate of any Deerfield the Lender shall have (unless expressly agreed to by such particular Deerfield the Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Deerfield the Lender or customary oral (confirmed by e-mail) “wall cross” agreement (it being understood and agreed that no Deerfield Lender may bind any other Deerfield Lender with respect thereto)agreement), any duty of trust or confidence with respect to, or a duty not to trade in any securities while aware of, any MNPI or any other information regarding the Borrower or any other Loan Party. The Borrower understands and acknowledges that the Lender, its affiliates and Persons acting on their behalf will rely on the representations, warranties, covenants, provisions and agreements set forth in this Section 4.03 in effecting transactions in the Securities and other securities of the Borrower and of other Persons. For the avoidance of doubt, the Borrower’s obligations under this Section 4.03 shall not be deemed to limit or otherwise modify the Borrower’s obligations under Section 5.18 of the Facility Agreement.