APPROACHING PROSPECTIVE PURCHASERS ON AN INDIVIDUAL BASIS WITH WHOM FBR AND/OR
THE COMPANY HAS AN EXISTING RELATIONSHIP.
NO GENERAL SOLICITATION OR GENERAL
ADVERTISING WITHIN THE MEANING OF REGULATION D WILL BE USED IN CONNECTION WITH
THE OFFERING OF THE NOTES.
(E)
RESTRICTIONS ON TRANSFER.
THE COMPANY AGREES THAT EACH NOTE AND
EACH RESALE NOTE SHALL BEAR A LEGEND STATING THAT THE OFFER AND SALE OF THE
NOTES OR RESALE NOTES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT, AND THAT NO RESALE OR OTHER TRANSFER OF ANY NOTES OR RESALE
NOTES OR ANY INTEREST THEREIN PRIOR TO THE DATE THAT IS ONE YEAR (OR SUCH
SHORTER PERIOD AS IS PRESCRIBED BY RULE 144(D) UNDER THE SECURITIES ACT AS THEN
IN EFFECT) AFTER THE LATER OF THE ORIGINAL ISSUANCE OF SUCH NOTES OR RESALE
NOTES, AS THE CASE MAY BE, AND THE LAST DATE ON WHICH THE COMPANY OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS
THE OWNER OF SUCH NOTES OR RESALE NOTES MAY BE MADE BY A PURCHASER OF SUCH NOTES
OR RESALE NOTES, EXCEPT AS FOLLOWS:
(A)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT,
(C)
FOR SO LONG AS THE NOTES OR RESALE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, IN A TRANSACTION COMPLYING WITH
THE REQUIREMENTS OF RULE 144A TO A PERSON WHO SUCH PURCHASER REASONABLY BELIEVES
IS A QIB THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB AND TO
WHOM NOTICE IS GIVEN THAT THE OFFER, RESALE, PLEDGE OR TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR
(D)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT,
in each case in accordance with any applicable federal securities laws and the
securities laws of any state of the United States or other jurisdiction.
4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to FBR, as of the date of this
Agreement and as of the Closing Time, and agrees with FBR, as follows:
(A)
DISCLOSURE PACKAGE.
THE DISCLOSURE PACKAGE DID NOT, AS OF ITS
DATE OR AS OF THE DATE OF ANY AMENDMENT OR SUPPLEMENT THERETO, CONTAIN AN 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 WERE MADE, NOT MISLEADING.
THE COMPANY'S ANNUAL REPORT ON FORM 10-K FOR
THE FISCAL YEAR ENDED DECEMBER 31, 2008 (THE "2008 FORM 10-K"), THE COMPANY'S
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED (THE "EXCHANGE ACT'") FILED APRIL 30, 2009, THE COMPANY'S
QUARTERLY REPORTS ON FORM 10-Q FOR THE QUARTERS ENDED MARCH
3
31, 2009, JUNE 30, 2009 AND SEPTEMBER 30, 2009 (COLLECTIVELY, THE "2009
FORM 10-QS"), AND ANY CURRENT REPORTS ON