ALL MATERIAL RESPECTS WITH THE COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY
THIS AGREEMENT TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY THE COMPANY AT OR
PRIOR TO THE CLOSING.
THE PURCHASERS SHALL HAVE RECEIVED A CERTIFICATE,
EXECUTED BY THE CHIEF EXECUTIVE OFFICER OF THE COMPANY AFTER REASONABLE
INVESTIGATION, DATED AS OF THE CLOSING DATE TO THE FOREGOING EFFECT AND AS TO
SUCH OTHER MATTERS AS MAY REASONABLY BE REQUESTED BY THE PURCHASERS.
(E)
NO STATUTE, RULE, REGULATION, EXECUTIVE ORDER, DECREE, RULING,
INJUNCTION, ACTION OR PROCEEDING SHALL HAVE BEEN ENACTED, ENTERED, PROMULGATED
OR ENDORSED BY ANY COURT OR GOVERNMENTAL AUTHORITY OF COMPETENT JURISDICTION OR
ANY SELF-REGULATORY ORGANIZATION HAVING AUTHORITY OVER THE MATTERS CONTEMPLATED
HEREBY WHICH QUESTIONS THE VALIDITY OF, CHALLENGES OR PROHIBITS THE CONSUMMATION
OF, ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(F)
THE PURCHASERS SHALL HAVE RECEIVED AN OPINION OF HALE AND DORR
LLP, DATED AS OF THE CLOSING DATE IN SUBSTANTIALLY THE FORM OF EXHIBIT E
ATTACHED HERETO.
17
(G)
THERE SHALL HAVE BEEN NO MATERIAL ADVERSE CHANGES AND NO MATERIAL
ADVERSE DEVELOPMENTS IN THE BUSINESS, PROPERTIES, OPERATIONS, FINANCIAL
CONDITION OR RESULTS OF OPERATIONS OF THE COMPANY SINCE THE DATE HEREOF, AND NO
INFORMATION, OF WHICH THE PURCHASERS ARE NOT CURRENTLY AWARE, SHALL HAVE COME TO
THE ATTENTION OF THE PURCHASERS THAT IS MATERIALLY ADVERSE TO THE COMPANY.
(H)
THE SECRETARY OF THE COMPANY SHALL DELIVER TO THE PURCHASERS AT
THE CLOSING A CERTIFICATE STATING THAT ALL BOARD OF DIRECTORS AND STOCKHOLDER
APPROVALS NECESSARY TO AUTHORIZE THE PERFORMANCE BY THE COMPANY OF ITS
OBLIGATIONS CONTEMPLATED BY THIS AGREEMENT HAVE BEEN OBTAINED AND ATTACHING
THERETO: (I) A COPY OF THE CERTIFICATE OF INCORPORATION (WITH ANY AND ALL
CERTIFICATES OF DESIGNATION) AND THE BYLAWS (AS AMENDED THROUGH THE DATE OF THE
CLOSING), CERTIFIED BY THE SECRETARY OF THE COMPANY AS THE TRUE AND CORRECT
COPIES THEREOF AS OF THE CLOSING; AND (II) A COPY OF THE RESOLUTIONS OF THE
BOARD OF DIRECTORS AND, IF REQUIRED, THE STOCKHOLDERS OF THE COMPANY,
AUTHORIZING THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE REGISTRATION
RIGHTS AGREEMENT, THE ISSUANCE OF THE SECURITIES AND OTHER MATTERS CONTEMPLATED
HEREBY.
8.
GOVERNING LAW; MISCELLANEOUS.
(A)
GOVERNING LAW; JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF DELAWARE.
THE COMPANY AND
THE PURCHASERS IRREVOCABLY CONSENT TO THE JURISDICTION OF THE UNITED STATES
FEDERAL COURTS AND THE STATE COURTS LOCATED IN THE STATE OF DELAWARE IN ANY SUIT
OR PROCEEDING BASED ON OR ARISING UNDER THIS AGREEMENT AND IRREVOCABLY AGREE
THAT ALL CLAIMS IN RESPECT OF SUCH SUIT OR PROCEEDING MAY BE DETERMINED IN SUCH
COURTS. THE COMPANY AND THE PURCHASERS
IRREVOCABLY WAIVE THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH SUIT OR PROCEEDING. THE PARTIES
FURTHER AGREE THAT SERVICE OF PROCESS UPON THE OTHER PARTY MAILED BY FIRST CLASS
MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH