SECTION 13(D) OF THE EXCHANGE ACT AND THE RULES
AND REGULATIONS PROMULGATED THEREUNDER (ASSUMING, FOR THIS PURPOSE, THAT THE
FIRST TRANCHE WARRANTS ARE IMMEDIATELY EXERCISABLE, NOTWITHSTANDING THE FACT
THAT SUCH FIRST TRANCHE WARRANTS ARE NOT EXERCISABLE UNTIL SIX MONTHS FOLLOWING
THE FIRST TRANCHE CLOSING DATE).
2.2
SECOND TRANCHE.
(A)
PURCHASE AND SALE OF PREFERRED STOCK AND SECOND TRANCHE WARRANTS.
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THE COMPANY AGREES TO
ISSUE AND SELL TO EACH PURCHASER, AND EACH PURCHASER, SEVERALLY AND NOT JOINTLY,
AGREES TO PURCHASE FROM THE COMPANY, AT THE SECOND TRANCHE CLOSING, THE
AGGREGATE NUMBER OF SHARES OF PREFERRED STOCK AND THE SECOND TRANCHE WARRANTS
WITH AN AGGREGATE PURCHASE PRICE SET FORTH OPPOSITE SUCH PURCHASER'S NAME ON
EXHIBIT A ATTACHED HERETO UNDER THE HEADING "SECOND TRANCHE CLOSING."
(B)
CERTIFICATE OF DESIGNATION.
THE PURCHASED SHARES BEING ISSUED AND
SOLD IN THE SECOND TRANCHE CLOSING SHALL HAVE THE PREFERENCES AND RIGHTS SET
FORTH IN THE CERTIFICATE OF DESIGNATION.
(C)
SECOND TRANCHE CLOSING.
UNLESS THIS AGREEMENT SHALL HAVE
TERMINATED PURSUANT TO ARTICLE X, AND SUBJECT TO THE SATISFACTION OR WAIVER OF
THE CONDITIONS SET FORTH IN SECTION 5.2 AND ARTICLE VI, THE SECOND CLOSING OF
THE SALE AND PURCHASE OF THE PURCHASED SHARES AND THE SECOND TRANCHE WARRANTS
(THE "SECOND TRANCHE CLOSING") SHALL TAKE PLACE AT THE BOSTON, MASSACHUSETTS
OFFICES OF GREENBERG TRAURIG, LLP, AT 10:00 A.M., LOCAL TIME, ON THE BUSINESS
DAY FOLLOWING THE DATE UPON WHICH THE CONDITIONS SET FORTH IN SECTION 5.2 AND
ARTICLE VI SHALL BE SATISFIED OR WAIVED IN ACCORDANCE WITH THIS AGREEMENT, OR AT
SUCH OTHER TIME, PLACE AND DATE THAT THE COMPANY AND THE PURCHASERS MAY AGREE IN
WRITING, BUT IN ANY EVENT NOT ON A DATE THAT IS LATER THAN THE OUTSIDE DATE (THE
"SECOND TRANCHE CLOSING DATE"). ON THE SECOND TRANCHE CLOSING DATE, THE COMPANY
(I) SHALL DELIVER TO EACH OF THE PURCHASERS A CERTIFICATE OR CERTIFICATES WITH
RESPECT TO THE PURCHASED SHARES AND AN INSTRUMENT OR INSTRUMENTS WITH RESPECT TO
THE SECOND TRANCHE WARRANTS, IN DEFINITIVE FORM AND REGISTERED IN THE NAME OF
EACH SUCH PURCHASER, REPRESENTING ITS PURCHASED SHARES AND SECOND TRANCHE
WARRANTS ISSUED AND SOLD AT THE SECOND TRANCHE CLOSING AGAINST DELIVERY BY EACH
OF THE PURCHASERS TO THE COMPANY OF THE AGGREGATE PURCHASE PRICE THEREFOR BY (X)
FIRST, BY CANCELLATION OF ALL INDEBTEDNESS EVIDENCED BY ANY NOTES ISSUED TO THE
PURCHASERS PURSUANT TO THE NOTE PURCHASE AGREEMENT AND (Y) SECOND, BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS FOR THE REMAINDER OF THE PURCHASE PRICE,
IF ANY, AND (II) SHALL PAY ALL TRANSACTION EXPENSES OWED TO THE PURCHASERS.
(D)
DEFINITIONS. THE FIRST TRANCHE CLOSING AND THE SECOND TRANCHE
CLOSING SHALL EACH BE REFERRED TO HEREIN AS A "CLOSING" AND THE FIRST TRANCHE
CLOSING DATE AND THE SECOND TRANCHE CLOSING DATE SHALL EACH BE REFERRED TO
HEREIN AS A "CLOSING DATE."
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2.3
USE OF PROCEEDS.
THE COMPANY SHALL USE THE PROCEEDS FROM THE SALE
TO THE PURCHASERS OF THE PURCHASED SHARES AND THE WARRANTS TO FUND