WHICH, AS
DETERMINED BY THE COMPANY, NEITHER FORM S-3 NOR ANY OTHER SIMILAR SHORT-FORM
REGISTRATION STATEMENT IS AVAILABLE THEREFOR, NOR SHALL THE COMPANY HAVE ANY
OBLIGATION TO MAINTAIN THE EFFECTIVENESS OF SUCH REGISTRATION STATEMENT FOR MORE
THAN ONE YEAR.
THE COMPANY MAY DELAY THE FILING OF ANY SUCH REGISTRATION
STATEMENT AS A RESULT OF CONSTRAINTS OR RESTRICTIONS UNDER APPLICABLE LAW SO
REQUIRING AS DETERMINED BY THE COMPANY, OR SUSPEND THE EFFECTIVENESS OF ANY SUCH
REGISTRATION STATEMENT AND/OR REQUIRE BY WRITTEN NOTICE THAT THE OFFERED
NOTEHOLDERS IMMEDIATELY CEASE SALES OF SHARES IN THE EVENT THAT FROM TIME TO
TIME (I) THE COMPANY FILES ANOTHER REGISTRATION STATEMENT (OTHER THAN A
REGISTRATION STATEMENT ON FORM S-8 OR ITS SUCCESSOR FORM) UNDER THE SECURITIES
ACT FOR A THEN PENDING OR ANTICIPATED PUBLIC OFFERING OF ITS SECURITIES, OR (II)
AN EVENT HAS OCCURRED, OR THE COMPANY HAS ENTERED INTO A TRANSACTION, WHICH THE
COMPANY DETERMINES IN GOOD FAITH MUST BE DISCLOSED IN ORDER FOR THE COMPANY TO
COMPLY WITH THE PUBLIC DISCLOSURE REQUIREMENTS IMPOSED ON THE COMPANY UNDER THE
SECURITIES ACT.
THE COMPANY SHALL NOT BE REQUIRED TO INCLUDE ANY REGISTRABLE
SECURITIES IN ANY SUCH REGISTRATION STATEMENT UNLESS THE HOLDER (I) PROVIDES TO
THE COMPANY IN A TIMELY MANNER SUCH INFORMATION REGARDING THE HOLDER AS IS
REQUIRED BY THE SECURITIES ACT TO BE INCLUDED IN THE REGISTRATION STATEMENT OR
PROVIDED TO THE COMPANY, (II) SHALL HAVE PROVIDED TO THE COMPANY ITS WRITTEN
AGREEMENT (X) TO INDEMNIFY THE COMPANY AND EACH OF ITS OFFICERS, DIRECTORS AND
AGENTS AGAINST, AND TO HOLD THE COMPANY AND ITS OFFICERS, DIRECTORS AND AGENTS
HARMLESS FROM, ANY LOSSES, CLAIMS, DAMAGES, EXPENSES OR LIABILITIES (INCLUDING
REASONABLE ATTORNEYS FEES) TO WHICH THE COMPANY OR ANY OF ITS OFFICERS,
DIRECTORS OR AGENTS MAY BECOME SUBJECT BY REASON OF ANY STATEMENT OR OMISSION IN
THE REGISTRATION STATEMENT MADE IN RELIANCE UPON, OR IN CONFORMITY WITH, A
WRITTEN STATEMENT BY SUCH HOLDER FURNISHED PURSUANT HERETO OR ANY FAILURE OF
HOLDER TO COMPLY WITH THE PROVISIONS OF THIS SECTION 12, AND (Y) TO REPORT TO
THE COMPANY SALES MADE PURSUANT TO THE REGISTRATION STATEMENT.
6
13.
SECURITY INTEREST.
THE COMPANY'S OBLIGATIONS UNDER THIS NOTE AND
THE OTHER OFFERED NOTES ARE SECURED BY A GRANT OF, AND THE COMPANY DOES HEREBY
GRANT TO THE HOLDER (AND HAS SIMILARLY GRANTED OR IS OR WILL SIMILARLY GRANT TO
THE OTHER OFFERED NOTEHOLDERS IN RESPECT OF THE OBLIGATIONS UNDER THE OTHER
OFFERED NOTES), SUBJECT TO THE TERMS, PROVISIONS AND LIMITATIONS HEREOF, A
SECURITY INTEREST IN (THE "COLLATERAL") ALL TANGIBLE AND INTANGIBLE ASSETS OF
THE COMPANY NOW EXISTING OR HEREAFTER ARISING (TOGETHER WITH PRODUCTS AND
PROCEEDS), OTHER THAN AND IN ANY EVENT EXCLUDING:
(I) ALL TANGIBLE AND INTANGIBLE ASSETS WHICH ARE THE SUBJECT OF ANY SECURITY
INTEREST PREVIOUSLY GRANTED BY THE COMPANY WHICH WOULD PROHIBIT OR CONFLICT WITH
A GRANT OF A SECURITY INTEREST HEREUNDER OR UNDER THE OTHER OFFERED NOTES, AND
IN ANY EVENT AND WITHOUT REGARD TO WHETHER OR NOT SO PROHIBITED OR CONFLICTING,
EXCLUDING ALL TANGIBLE AND INTANGIBLE