IN CONNECTION WITH THE EXECUTION,
DELIVERY OR PERFORMANCE BY THE COMPANY OF THIS AGREEMENT OR ANY OF THE OTHER
AGREEMENTS OR DOCUMENTS CONTEMPLATED HEREBY (INCLUDING ANY NECESSARY WAIVERS OF
ANY PREEMPTIVE RIGHTS, ANY RIGHTS OF FIRST REFUSAL AND ANY REGISTRATION RIGHTS),
OTHER THAN THOSE SET FORTH ON SCHEDULE 3.4 OF THE DISCLOSURE SCHEDULE AND THOSE
WHICH WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE
EFFECT.
8
3.5.
ISSUANCE PERMITTED BY REQUIREMENTS OF LAW.
THE
ISSUANCE OF THE SERIES A PREFERRED SHARES TO BE ISSUED BY THE COMPANY HEREUNDER
AT THE CLOSING AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AT
THE CLOSING (A) SHALL NOT BE PROHIBITED BY ANY REQUIREMENTS OF LAW AND (B) SHALL
NOT SUBJECT THE INVESTOR TO ANY PENALTY UNDER OR PURSUANT TO ANY REQUIREMENTS OF
LAW.
3.6.
CLOSING DELIVERIES.
AT THE CLOSING, THE COMPANY
SHALL HAVE DELIVERED TO THE INVESTOR ALL OF THE FOLLOWING:
(A)
COPY OF THE CERTIFICATE OF INCORPORATION,
AS AMENDED BY THE CERTIFICATE OF DESIGNATION, CERTIFIED AS OF A RECENT DATE BY
THE SECRETARY OF STATE OF THE STATE OF DELAWARE;
(B)
CERTIFICATE OF GOOD STANDING OF THE COMPANY
ISSUED AS OF A RECENT DATE BY THE SECRETARY OF STATE OF THE STATE OF DELAWARE;
(C)
CERTIFICATE OF THE CHIEF EXECUTIVE OFFICER
OF THE COMPANY, DATED THE CLOSING DATE, TO THE EFFECT THAT, TO HIS KNOWLEDGE
AFTER DUE INQUIRY, THE CONDITIONS SPECIFIED IN SECTIONS 3.1 THROUGH 3.5 HAVE
BEEN SATISFIED FULLY;
(D)
ONE OR MORE STOCK CERTIFICATES, DULY
EXECUTED BY THE COMPANY AND REGISTERED IN THE COMPANY'S STOCK LEDGER IN THE
INVESTOR'S OR ITS NOMINEE'S NAME, EVIDENCING THE INITIAL SERIES A PREFERRED
SHARES;
(E)
CERTIFICATE OF THE SECRETARY OR AN
ASSISTANT SECRETARY OF THE COMPANY, DATED THE CLOSING DATE, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE INVESTOR, AS TO (I) NO AMENDMENTS TO
THE CERTIFICATE OF INCORPORATION SINCE A SPECIFIED DATE; (II) THE BY-LAWS; (III)
THE RESOLUTIONS DULY ADOPTED BY THE BOARD OF DIRECTORS AUTHORIZING AND APPROVING
(INCLUDING FOR PURPOSES OF §203 OF THE DELAWARE GENERAL CORPORATION LAW), AS
APPROPRIATE, THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT, THE
REGISTRATION RIGHTS AGREEMENT AND THE WARRANT BY THE COMPANY AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, INCLUDING THE ISSUANCE, SALE AND
DELIVERY OF THE SERIES A PREFERRED SHARES AND THE RESERVATION FOR ISSUANCE OF
THE CONVERSION COMMON SHARES, AND THE FILING OF THE CERTIFICATE OF DESIGNATION
WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE; AND (IV) THE INCUMBENCY
AND SIGNATURES OF THE OFFICERS OF THE COMPANY AUTHORIZED TO EXECUTE AND DELIVER
THIS AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT, THE WARRANT AND THE
CERTIFICATE OF DESIGNATION;
(F)
LEGAL OPINION OF HALE AND DORR LLP,
SPECIAL COUNSEL FOR THE COMPANY, DATED THE CLOSING DATE, ADDRESSED TO THE
INVESTOR AND IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT D;
(G)
REGISTRATION RIGHTS AGREEMENT, DULY EXECUTED
BY THE COMPANY;
(H)
WARRANT, DULY EXECUTED BY THE COMPANY; AND
(I)
SUCH OTHER DOCUMENTS, INSTRUMENTS,
APPROVALS OR OPINIONS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS