Business Day following the date that the
Registration Statement is declared effective by the Commission (as such terms
are defined in the Registration Rights Agreement to be entered into at the
Closing between the Company and the Purchasers).
SECTION 1.5
WARRANT SHARES AND AIR
SHARES. THE COMPANY HAS AUTHORIZED AND HAS RESERVED AND COVENANTS TO CONTINUE TO
RESERVE, FREE OF PREEMPTIVE RIGHTS AND OTHER SIMILAR CONTRACTUAL RIGHTS OF
STOCKHOLDERS, A NUMBER OF ITS AUTHORIZED BUT UNISSUED SHARES OF COMMON STOCK
EQUAL TO THE AGGREGATE NUMBER OF SHARES OF COMMON STOCK NECESSARY TO EFFECT THE
EXERCISE OF THE WARRANTS AND THE AIRS. ANY SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THE WARRANTS (AND SUCH SHARES WHEN ISSUED) ARE HEREIN REFERRED TO AS
THE "WARRANT SHARES". ANY SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THE
AIRS (AND SUCH SHARES WHEN ISSUED) ARE HEREIN REFERRED TO AS THE "AIR SHARES".
THE SHARES, THE WARRANTS, THE AIRS, THE WARRANT SHARES AND THE AIR SHARES ARE
SOMETIMES COLLECTIVELY REFERRED TO HEREIN AS THE "SECURITIES".
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY. IN ORDER TO INDUCE THE PURCHASERS TO ENTER INTO THIS AGREEMENT
AND TO PURCHASE THE SHARES, THE WARRANTS AND THE AIRS, THE COMPANY HEREBY MAKES
THE FOLLOWING REPRESENTATIONS AND WARRANTIES TO THE PURCHASERS:
(A)
ORGANIZATION, GOOD STANDING AND POWER. THE
COMPANY IS A CORPORATION DULY INCORPORATED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF MASSACHUSETTS AND HAS THE REQUISITE
CORPORATE POWER TO OWN, LEASE AND OPERATE ITS PROPERTIES AND ASSETS AND TO
CONDUCT ITS BUSINESS AS IT IS NOW BEING CONDUCTED.
THE COMPANY DOES NOT HAVE
ANY SUBSIDIARIES (AS DEFINED IN SECTION 2.1(G)) OR OWN SECURITIES OF ANY KIND IN
ANY OTHER ENTITY, EXCEPT AS DISCLOSED IN THE COMMISSION DOCUMENTS (AS DEFINED IN
SECTION 2.1(F)) OR AS SET FORTH ON SCHEDULE 2.1(G) HERETO. THE COMPANY AND EACH
SUCH SUBSIDIARY IS DULY QUALIFIED AS A FOREIGN CORPORATION TO DO BUSINESS AND IS
IN GOOD STANDING IN EVERY JURISDICTION IN WHICH THE NATURE OF THE BUSINESS
CONDUCTED OR PROPERTY OWNED BY IT MAKES SUCH QUALIFICATION NECESSARY, EXCEPT FOR
ANY JURISDICTION(S) (ALONE OR IN THE AGGREGATE) IN WHICH THE FAILURE TO BE SO
QUALIFIED WILL NOT HAVE A MATERIAL ADVERSE EFFECT.
FOR THE PURPOSES OF THIS
AGREEMENT, "MATERIAL ADVERSE EFFECT" MEANS ANY ADVERSE EFFECT ON THE BUSINESS,
OPERATIONS, PROPERTIES, PROSPECTS OR FINANCIAL CONDITION OF THE COMPANY OR ITS
SUBSIDIARIES AND WHICH IS MATERIAL TO SUCH ENTITY OR OTHER ENTITIES CONTROLLING
OR
2
CONTROLLED BY SUCH ENTITY OR WHICH IS LIKELY TO MATERIALLY HINDER THE
PERFORMANCE BY THE COMPANY OF ITS MATERIAL OBLIGATIONS HEREUNDER AND UNDER THE
OTHER TRANSACTION DOCUMENTS (AS DEFINED IN SECTION 2.1(B) HEREOF).
(B)
AUTHORIZATION; ENFORCEMENT. THE COMPANY HAS
THE REQUISITE CORPORATE POWER AND AUTHORITY TO ENTER INTO AND PERFORM THIS
AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT, THE WARRANTS, THE AIRS, AND THE
OTHER AGREEMENTS AND DOCUMENTS CONTEMPLATED HEREBY AND THEREBY AND EXECUTED BY
THE COMPANY OR TO WHICH THE COMPANY IS