AGGREGATE PURCHASE PRICE SET FORTH OPPOSITE SUCH PURCHASER'S
NAME ON EXHIBIT A ATTACHED HERETO UNDER THE HEADING "FIRST TRANCHE CLOSING."
THE SHARES OF PREFERRED STOCK BEING ISSUED AND SOLD PURSUANT TO THIS AGREEMENT
IN THE FIRST TRANCHE CLOSING AND THE SECOND TRANCHE CLOSING (AS DEFINED BELOW)
SHALL BE REFERRED TO HEREIN AS "PURCHASED SHARES."
(B)
CERTIFICATE OF DESIGNATION.
THE PURCHASED SHARES BEING ISSUED AND
SOLD IN THE FIRST TRANCHE CLOSING SHALL HAVE THE PREFERENCES AND RIGHTS SET
FORTH IN THE CERTIFICATE OF DESIGNATION.
(C)
FIRST 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 5.1 AND ARTICLE VI, THE INITIAL CLOSING OF
THE SALE AND PURCHASE OF THE PURCHASED SHARES AND THE FIRST TRANCHE WARRANTS
(THE "FIRST 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 5.1 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 (THE "FIRST TRANCHE CLOSING DATE"). ON THE FIRST 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 FIRST TRANCHE WARRANTS, IN DEFINITIVE FORM AND
REGISTERED IN THE NAME OF EACH SUCH PURCHASER, REPRESENTING ITS PURCHASED SHARES
AND FIRST TRANCHE WARRANTS ISSUED AND SOLD AT THE FIRST TRANCHE CLOSING AGAINST
DELIVERY BY EACH OF THE PURCHASERS TO THE COMPANY OF THE AGGREGATE PURCHASE
PRICE THEREFOR BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS AND (II) SHALL
PAY ALL TRANSACTION EXPENSES OWED TO THE PURCHASERS.
(D)
NO CHANGE OF CONTROL. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET
FORTH HEREIN, NO PURCHASER SHALL BE ENTITLED TO PURCHASE PURCHASED SHARES AND
FIRST TRANCHE WARRANTS AT THE FIRST TRANCHE CLOSING TO THE EXTENT (AND ONLY TO
THE EXTENT) THAT SUCH SECURITIES WOULD CAUSE SUCH PURCHASER, INDIVIDUALLY OR
TOGETHER WITH ANY OTHER PERSONS WHOSE BENEFICIAL OWNERSHIP OF COMMON STOCK WOULD
BE AGGREGATED WITH SUCH PURCHASER FOR PURPOSES OF SECTION 13(D) OF THE EXCHANGE
ACT, TO BENEFICIALLY OWN IN EXCESS OF 19.99% OF THE TOTAL NUMBER OF ISSUED AND
OUTSTANDING SHARES OF COMMON STOCK IMMEDIATELY AFTER GIVING EFFECT TO THE FIRST
TRANCHE CLOSING (INCLUDING FOR SUCH PURPOSE THE SHARES OF COMMON STOCK ISSUED OR
ISSUABLE UPON CONVERSION OF THE PURCHASED SHARES AND EXERCISE OF THE FIRST
TRANCHE WARRANTS). IF, AS A RESULT, OF THE PRECEDING SENTENCE, THE NUMBER OF
12
PURCHASED SHARES AND FIRST TRANCHE WARRANTS TO BE PURCHASED BY A PURCHASER AT
THE FIRST TRANCHE CLOSING MUST BE REDUCED, APPROPRIATE ADJUSTMENTS SHALL BE MADE
TO THE PURCHASE PRICE TO BE PAID BY SUCH PURCHASER AT THE FIRST TRANCHE CLOSING.
FOR THE PURPOSES OF THIS SECTION 2.1(D), BENEFICIAL OWNERSHIP SHALL BE
DETERMINED IN ACCORDANCE WITH