QUARTERLY AND CURRENT REPORTS
SUPPLIED TO HOLDERS OF THE NOTES, IF ANY AND (II) COPIES OF ALL REPORTS FILED BY
THE COMPANY WITH THE SEC; PROVIDED, HOWEVER, THAT SO LONG AS THE COMPANY IS
TIMELY FILING REPORTS WITH THE SEC ON EDGAR, IT IS NOT REQUIRED TO FURNISH SUCH
REPORTS OR STATEMENTS TO FBR;
(E)
DURING ANY PERIOD IN THE YEAR (OR SUCH SHORTER PERIOD AS MAY THEN
BE APPLICABLE UNDER THE SECURITIES ACT REGARDING THE HOLDING PERIOD FOR
SECURITIES UNDER RULE 144(D) UNDER THE SECURITIES ACT OR ANY SUCCESSOR RULE)
AFTER THE CLOSING TIME IN WHICH THE COMPANY IS NOT SUBJECT TO SECTION 13 OR
15(D) OF THE EXCHANGE ACT TO FURNISH, UPON REQUEST, TO ANY HOLDER OF THE NOTES
THE INFORMATION ("RULE 144A INFORMATION") SPECIFIED IN RULE L44A(D)(4) UNDER THE
SECURITIES ACT AND ANY ADDITIONAL INFORMATION ("PORTAL INFORMATION") REQUIRED BY
THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. PORTALSM MARKET ("PORTAL"),
AND ANY SUCH RULE L44A INFORMATION AND PORTAL INFORMATION WILL NOT, AT THE DATE
THEREOF, CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A
MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF
THE CIRCUMSTANCES UNDER WHICH THEY ARE MADE, NOT MISLEADING;
(F)
THAT NEITHER THE COMPANY NOR ANY OF THEIR RESPECTIVE AFFILIATES
(AS DEFINED IN SECTION 501(B) OF REGULATION D) WILL, WHETHER DIRECTLY OR THROUGH
ANY AGENT OR PERSON ACTING ON ITS BEHALF (OTHER THAN FBR): (I) OFFER NOTES OF
THE COMPANY OR ANY OTHER SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE OR
EXERCISABLE FOR COMMON STOCK IN A MANNER IN VIOLATION OF THE SECURITIES ACT OR
THE RULES AND REGULATIONS THEREUNDER, (II) DISTRIBUTE ANY OFFERING MATERIAL
(OTHER THAN THE DISCLOSURE PACKAGE) IN CONNECTION WITH THE OFFER
13
AND SALE OF THE NOTES, OR (III) SELL, OFFER FOR SALE, SOLICIT OFFERS TO BUY OR
OTHERWISE NEGOTIATE IN RESPECT OF ANY SECURITY (AS DEFINED IN THE SECURITIES
ACT), ANY OF WHICH WILL BE INTEGRATED WITH THE OFFERING AND SALE OF THE NOTES IN
A MANNER THAT WOULD REQUIRE THE REGISTRATION UNDER THE SECURITIES ACT OF THE
SALE TO FBR (OR TO THE ELIGIBLE PURCHASERS, IN THE CASE OF THE RESALE NOTES);
(G)
THAT, EXCEPT AS PERMITTED BY THE SECURITIES ACT, NEITHER THE
COMPANY NOR ANY OF ITS AFFILIATES WILL DISTRIBUTE ANY OFFERING MATERIALS IN
CONNECTION WITH EXEMPT RESALES;
(H)
TO PAY ALL EXPENSES, FEES AND TAXES IN CONNECTION WITH (I) THE
ISSUANCE, SALE AND DELIVERY OF THE NOTES, (II) THE QUALIFICATION OF THE NOTES
FOR OFFERING AND SALE UNDER STATE LAWS AND THE DETERMINATION OF THEIR
ELIGIBILITY FOR INVESTMENT UNDER STATE LAW AS AFORESAID (INCLUDING ANY FILING
FEES), AND THE PRINTING AND FURNISHING OF COPIES OF ANY BLUE SKY SURVEYS OR
LEGAL INVESTMENT SURVEYS TO FBR, (III) ALL FEES AND DISBURSEMENTS OF COUNSEL AND
ACCOUNTANTS FOR THE COMPANY, (IV) THE DESIGNATION OF THE NOTES AS PORTAL
ELIGIBLE SECURITIES BY PORTAL, (V) THE FEES AND EXPENSES OF ANY TRUSTEE,
TRANSFER AGENT OR REGISTRAR FOR THE NOTES OR THE UNDERLYING SHARES AND