Common use of Authorization; Validity of Agreement; Company Action Clause in Contracts

Authorization; Validity of Agreement; Company Action. The Company has the requisite corporate power and authority to execute and deliver this Agreement, and has the requisite corporate power and authority to perform the Transactions. The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company of the Transactions, have been duly and validly authorized by the Company Board of Directors, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company of the Transactions, other than the adoption of this Agreement by (i) the holders of not less than 66-2/3% of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCL. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof by Parent and Merger Sub, is the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite all necessary corporate power and authority to execute and deliver this Agreement, and has the requisite corporate power and authority to perform its obligations hereunder and to consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of Directors, Directors and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than subject, in the adoption case of the Merger, to the approval of this Agreement by (ithe holder(s) the holders of not less than 66-2/3% of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as all of the Record DateShares entitled to be cast, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLif required by applicable law. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof by Parent and Merger Subthe Purchaser, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' ’ rights generally, generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) The Company Rights Agreement has been amended so that, until the valid termination of this Agreement in accordance with Article VIII hereto: (i) the Purchaser and each Purchaser Subsidiary are each exempt from the definition of “Acquiring Person” contained in the Company Rights Agreement, and no “Shares Acquisition Date” or “Distribution Date” or “Triggering Event” (as such terms are defined in the Company Rights Agreement) will occur as a result of the execution of this Agreement or the consummation of the Offer, the Merger and the other Transactions and (ii) the Company Rights Agreement will terminate and the Company Rights will expire immediately prior to the Effective Time. The Company Rights Agreement, as so amended, has not been further amended or modified. The Company has previously provided a true, complete and correct copy of the Company Rights Agreement and all amendments thereto through the date hereof to the Purchaser.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite full corporate power and authority to execute and deliver this Agreement, Agreement and has the requisite corporate power and authority to perform consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of DirectorsDirectors of the Company (the “Company Board”), and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than except that the adoption of this Agreement by (i) the holders of not less than 66-2/3% consummation of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of Merger requires the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLShareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Parent and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency reorganization, insolvency, moratorium or other similar lawsLaws, now or hereafter in effect, affecting creditors' ’ rights generally, generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) Assuming the accuracy of the representation and warranty in Section 4.4, the affirmative vote of the holders of a majority of the outstanding Shares to adopt this Agreement (the “Shareholder Approval”) is the only vote or consent of the holders of any class or series of the Company’s capital stock, or any of them, that is necessary in connection with the consummation of the Merger. (c) At a meeting duly called and held, the Company Board (i) determined that this Agreement and the Transactions are fair to and in the best interests of the Company’s shareholders and declared this Agreement advisable, (ii) approved this Agreement and the Transactions, (iii) directed that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s shareholders and (iv) resolved (subject to Section 5.2) to recommend to the Company’s shareholders that they adopt this Agreement (such recommendation, the “Company Recommendation”). (d) The copies of the Company’s Second Amended and Restated Articles of Incorporation and Second Amended and Restated Regulations, in the forms most recently filed in the Company SEC Documents, are true, complete and correct copies of such documents as in effect as of the date of this Agreement.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite all necessary corporate power and authority to execute and deliver this Agreement, Agreement and has the requisite corporate power and authority to perform consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of DirectorsDirectors of the Company (the “Company Board”), and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than except that the adoption of this Agreement by (i) the holders of not less than 66-2/3% consummation of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of Merger requires the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLStockholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Parent and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency reorganization, insolvency, moratorium or other similar lawsLaws, now or hereafter in effect, affecting creditors' ’ rights generally, generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) Assuming the accuracy of the representation and warranty in Section 4.4, the affirmative vote of the holders of at least seventy-five percent of the voting power of the outstanding Shares, as determined in accordance with the Company’s Certificate of Incorporation, to approve this Agreement (the “Stockholder Approval”) is the only vote or consent of the holders of any class or series of the Company’s capital stock, or any of them, that is necessary in connection with the consummation of the Merger. (c) At a meeting duly called and held, the Company Board unanimously (i) determined that this Agreement and the Transactions are advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved this Agreement and the Transactions, (iii) directed that the approval of this Agreement be submitted to a vote at a meeting of the Company’s stockholders, (iv) resolved (subject to Section 5.2) to recommend to the Company’s stockholders that they approve this Agreement (such recommendation, the “Company Recommendation”). (d) The copies of the Company’s Restated Certificate of Incorporation (the “Certificate of Incorporation”) and the Company’s Amended and Restated By-laws, each in the form most recently filed in the Company SEC Documents, are true, complete and correct copies of such documents as in effect as of the date of this Agreement.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite full corporate power and authority to execute and deliver this AgreementAgreement and, and has subject to obtaining Stockholder Approval (as defined below) in the requisite corporate power and authority case of consummation of the Merger, to perform consummate the transactions contemplated hereby (the “Transactions”). The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of DirectorsBoard, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than except that the adoption of this Agreement by (i) the holders of not less than 66-2/3% consummation of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as Merger requires the approval of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stockcommon stock, as par value $0.01 per share, of the Record Date, voting as a separate class, Company (such approval being the “Stockholder Approval” and (iii) holders of a majority of such common stock being the outstanding shares of Series C Preferred “Company Common Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCL”). This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Parent and Merger Subthe other parties hereto, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency reorganization, insolvency, moratorium or other similar lawsLaws, now or hereafter in effect, affecting creditors' ’ rights generally, generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) Assuming the accuracy of the representation and warranty in Section 4.4, the Stockholder Approval is the only vote of the holders of any class or series of the Company’s capital stock that is necessary in connection with the consummation of the Merger and the other Transactions. (c) At a meeting duly called and held, the Company Board unanimously adopted resolutions, which resolutions have not been subsequently rescinded, modified or withdrawn in any way, in which the Company Board (i) determined that this Agreement and the Transactions are fair to and in the best interests of the Company’s stockholders and declared this Agreement advisable, (ii) approved this Agreement and the Transactions, (iii) directed that the adoption of this Agreement be submitted to a vote of the Company’s stockholders at the Special Meeting, and (iv) (subject only to Section 5.2) recommended that the Company’s stockholders adopt and approve this Agreement (such recommendation, the “Company Recommendation”).

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite necessary corporate power and authority to execute and deliver this AgreementAgreement and the Option Agreement and, subject to obtaining any necessary approval of this Agreement and has the requisite corporate power and authority Merger by the stockholders of the Company, to perform consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement and the Option Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company its Board of DirectorsDirectors and, and except for obtaining the approval of its stockholders as contemplated by Section 1.10 hereof, no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the Option Agreement, and the consummation by the Company it of the Transactions, other than the adoption . Each of this Agreement by (i) and the holders of not less than 66-2/3% of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCL. This Option Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof by Parent and Merger Subthe Purchaser, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, terms except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding proceedings therefor may be brought. (b) The provisions of Section 203 of the DGCL, are not applicable to this Agreement, the Option Agreement, the Stockholder Agreement or the other Transactions, including the Merger and the purchase of Shares in the Offer or pursuant to the exercise of the option granted under the Option Agreement. The affirmative vote of the holders of a majority of the outstanding Shares is the only vote of the holders of any class or series of the Company's capital stock which may be necessary to approve this Agreement and the other Transactions, including the Merger.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite full corporate power and authority to execute and deliver this Agreement, Agreement and has the requisite corporate power and authority to perform consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of DirectorsDirectors of the Company (the “Company Board”), and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than except that the adoption of this Agreement by (i) the holders of not less than 66-2/3% consummation of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of Merger requires the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLShareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Parent and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency reorganization, insolvency, moratorium or other similar laws, now or hereafter in effect, Laws affecting creditors' ’ rights generallygenerally and general principles of equitable relief. (b) Assuming the accuracy of the representation and warranty in Section 4.4, the affirmative vote of the holders of two-thirds of the outstanding Shares to adopt this Agreement (the “Shareholder Approval”) is the only vote or consent of the holders of any class or series of the Company’s capital stock, or any of them, that is necessary in connection with the consummation of the Merger. (c) At a meeting duly called and held, the Company Board unanimously (i) determined that this Agreement and the Transactions are fair to and in the best interests of the Company’s shareholders and declared this Agreement advisable, (ii) approved and adopted this Agreement and the remedy Transactions, (iii) directed that the adoption of specific performance this Agreement be submitted to a vote at a meeting of the Company’s shareholders and injunctive and other forms of equitable relief may be (iv) resolved (subject to equitable defenses Section 5.2(d) and Section 5.2(e)) to recommend to the discretion of Company’s shareholders that they adopt this Agreement (such recommendation, the court before which any proceeding therefor may be brought“Company Recommendation”).

Authorization; Validity of Agreement; Company Action. (a) The Company has the all requisite corporate power and authority to execute and deliver this AgreementAgreement and, subject to approval of the Merger and has adoption of the requisite corporate power and authority Plan of Merger by the shareholders of the Company, to perform consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company of the Transactions, have been duly and validly authorized by the Company Board of Directorsand the Special Committee, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company of the Transactions, other than except for approval of the Merger and adoption of this Agreement the Plan of Merger by (i) the holders of not less than 66-2/3% affirmative vote of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares voting power of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority all of the outstanding shares Common Shares (the “Shareholder Approval”) and subject to the filing of Series C Preferred Stock, appropriate merger documents as of required under the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLMBCA. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Parent and Merger Subthe other parties hereto, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (ix) such enforcement may be subject to applicable bankruptcy, insolvency reorganization, insolvency, moratorium or other similar lawsLaws, now or hereafter in effect, affecting creditors' ’ rights generally, generally and (iiy) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) The Shareholder Approval is the only approval of the holders of any class or series of the Company’s capital stock that is necessary in connection with the consummation of the Merger and the other Transactions. (c) At a meeting duly called and held, the Company Board (upon the unanimous recommendation of the Special Committee) unanimously adopted resolutions, which resolutions have not been subsequently rescinded, modified or withdrawn in any way, in which the Company Board (i) determined that this Agreement and the Transactions are advisable and fair to and in the best interests of the Company and its shareholders, (ii) approved this Agreement, the Plan of Merger and the Transactions, (iii) directed that the Merger and the Plan of Merger be submitted to the Company’s shareholders for approval and adoption, and (iv) (subject to the other provisions of this Agreement) resolved to recommend that the Company’s shareholders approve the Merger and approve and adopt the Plan of Merger and this Agreement (such recommendation, the “Company Recommendation”). (d) The Company has delivered or made available to Parent complete and correct copies of the Company Charter Documents and all Subsidiary Charter Documents. (e) The filing of the Proxy Statement with the SEC has been duly authorized and approved by the Company Board.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite full corporate power and authority to execute and deliver this Agreement, and has the requisite corporate power and authority to perform its obligations hereunder and to consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of Directors, Directors and no other corporate action on the part of the Company Company, pursuant to the MGCL or otherwise, is necessary to authorize the execution and delivery by the Company of this Agreement Agreement, and the consummation by the Company it of the Transactions, other than subject, in the adoption of this Agreement by (i) the holders of not less than 66-2/3% case of the outstanding shares of Company Common StockMerger, Series B Preferred Stock and Series C Preferred Stock, as to the approval of the Record Date, voting together as a single class, (ii) holders of a majority Merger and the other Transactions by the Company Stockholder Approval and the filing of the outstanding shares Articles of Series B Preferred StockMerger with, as and acceptance for record of the Record DateArticles of Merger by, voting as a separate classthe SDAT, and (iii) holders of a majority the due filing of the outstanding shares Certificate of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance Merger with the Company Organizational Documents and Section 903 of the BCLDelaware Secretary. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof by the Company Operating Partnership, Parent and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that the enforcement hereof may be limited by (i) such enforcement may be subject to applicable bankruptcy, insolvency insolvency, reorganization, moratorium or other similar lawsLaws, now or hereafter in effect, affecting relating to creditors' ’ rights generally, generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). The representations and warranties set forth in this Section 3.3(a) are not made with respect to the remedy Financing. (b) The Company Operating Partnership has full partnership power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Transactions. The execution, delivery and performance by the Company Operating Partnership of specific performance this Agreement, and injunctive the consummation by it of the Transactions, have been duly and validly authorized by the general partner of the Company Operating Partnership and no other forms action on the part of equitable relief the Company Operating Partnership, pursuant to the DRULPA or otherwise, is necessary to authorize the execution and delivery by the Company Operating Partnership of this Agreement, and the consummation by it of the Transactions. This Agreement has been duly executed and delivered by the Company Operating Partnership and, assuming due and valid authorization, execution and delivery hereof by the Company, Parent and Merger Sub, is a valid and binding obligation of the Company Operating Partnership enforceable against the Company Operating Partnership in accordance with its terms, except that the enforcement hereof may be subject limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to equitable defenses creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). The representations and warranties set forth in this Section 3.3(b) are not made with respect to the discretion Financing. (c) No consent from the holder of any Company OP Unit, other than the Company in its capacity as general partner, is required for the Company or the Company Operating Partnership to enter into this Agreement or the consummation of the court before which any proceeding therefor may be broughtMerger or the other Transactions.

Authorization; Validity of Agreement; Company Action. The (a) Company has the requisite full corporate power and authority to execute and deliver this Agreement, the agreements contemplated by the Company Reorganization, and has the requisite corporate power and authority any other documents to which it is specified to be a party, to perform its obligations hereunder and thereunder and to consummate the Merger, the Company Reorganization and the other Transactions. The execution execution, delivery and delivery performance by Company of this Agreement, the agreements contemplated by the Company of, and the performance by the Company of its obligations under, this Agreement, Reorganization and the consummation by it of the Merger, the Company of Reorganization and the other Transactions, have been duly and validly authorized by the Company Board of Directors, Directors and no other corporate action on the part of Company pursuant to the Company Governing Documents, the MGCL, the DLLCA or otherwise, is necessary to authorize the execution and delivery by the Company of this Agreement Agreement, the Company Reorganization and the consummation by it of the Merger, the Company Reorganization and the other Transactions, subject, in the case of the TransactionsMerger, other than to the adoption of this Agreement by (i) the holders of not less than 66-2/3% filing of the outstanding shares Articles of Company Common StockMerger with, Series B Preferred Stock and Series C Preferred Stock, as acceptance for record of the Record DateArticles of Merger by, voting together as a single class, (ii) holders of a majority the SDAT and the filing of the outstanding shares Certificate of Series B Preferred StockMerger with, as and acceptance for record of the Record Date, voting as a separate class, and (iii) holders Certificate of a majority of Merger by the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLDelaware Secretary. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof by Parent, Parent Operating Partnership and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that the enforcement hereof may be limited by (i) such enforcement may be subject to applicable bankruptcy, insolvency insolvency, reorganization, moratorium or other similar lawsLaws, now or hereafter in effect, affecting relating to creditors' ’ rights generally, generally and (ii) the remedy general principles of specific performance and injunctive and other forms equity (regardless of equitable relief may be subject to equitable defenses and to the discretion of the court before which any whether enforceability is considered in a proceeding therefor may be broughtin equity or at Law).

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite corporate power and authority to execute and deliver this AgreementAgreement and, and has subject to obtaining the requisite corporate power and authority approval of its shareholders, to perform consummate the Transactionstransactions contemplated hereby. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, Agreement and the consummation by the Company of the Transactions, transactions contemplated hereby have been duly and validly authorized by its board of directors, and, except for, with respect to the Company Board Merger, obtaining the approval of Directorsits shareholders, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than the adoption of this Agreement by (i) the holders of not less than 66-2/3% of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLtransactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and, subject to approval by the Company's shareholders (and assuming the due and valid authorization, execution and delivery hereof by Parent and Merger Sub), is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors' rights generally, and remedies generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) The board of directors of the Company has (i) determined that it is in the best interests of the Company's shareholders for the Company to consummate the acquisition of the Company by Parent and Sub upon the terms and subject to the conditions set forth in this Agreement, (ii) adopted this Agreement and approved the transactions contemplated hereby, including the Merger, and (iii) resolved, subject to Section 6.3, to recommend that the shareholders of the Company approve this Agreement and the transactions contemplated hereby, including the Merger. (c) The affirmative vote (in person or by proxy) of the holders of not less than two-thirds of the outstanding shares of Common Stock at the Company Special Meeting in favor of the approval of this Agreement (the "Company Shareholder Approval") is the only vote or approval of the holders of any class or series of capital stock of the Company or any of its Subsidiaries that is necessary to approve this Agreement and the transactions contemplated hereby, including the Merger.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite all necessary corporate power and authority to execute and deliver this Agreement, Agreement and has the requisite corporate power and authority to perform the Transactionsits obligations hereunder. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the board of directors of the Company Board of Directors(the “Company Board”), and no other corporate action on the part of the Company is necessary to authorize the execution execution, delivery and delivery performance by the Company of this Agreement and the consummation by the Company it of the Transactions, other than except, in the adoption case of this Agreement by the consummation of the Merger, for (ix) the holders of not less than 66-2/3% Stockholder Approval and (y) the filing of the outstanding shares Certificate of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as Merger with the Secretary of State of the Record Date, voting together as a single class, (ii) holders State of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLDelaware. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Kuraray, Parent and Merger Sub, is the a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency reorganization, insolvency, moratorium or other similar lawsLaws, now or hereafter in effect, affecting creditors' ’ rights generally, generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtbrought (the “General Enforceability Exceptions”). (b) Assuming the accuracy of the representations and warranties in Section 4.4, the affirmative vote of the holders of a majority of the outstanding Shares entitled to vote thereon to adopt this Agreement (the “Stockholder Approval”) is the only vote or consent of the holders of any class or series of the Company’s capital stock that is necessary in connection with the consummation of the Merger. (c) At a meeting duly called and held, the Company Board (i) determined that the Merger is fair to and in the best interests of the Company and the Company’s stockholders, (ii) approved and declared advisable the execution, delivery and performance of this Agreement and the consummation of the Transactions, including the Merger, on the terms and subject to the conditions set forth in this Agreement and (iii) resolved to recommend to the Company’s stockholders that they adopt this Agreement (such recommendation, the “Company Recommendation”) and directed that such matter be submitted for consideration of the Company’s stockholders at the Meeting. (d) At a meeting duly called and held, the Company Board unanimously adopted resolutions approving an amendment to the Company’s bylaws to include the provision set forth in Exhibit C hereto. The Company Board has not amended or withdrawn such resolutions and the language of such amendment to the Company’s bylaws has not been amended or otherwise modified.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite full corporate power and authority to execute and deliver this Agreement, Agreement and has the requisite corporate power and authority to perform consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of DirectorsDirectors of the Company (the “Company Board”), and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than except that the adoption of this Agreement by (i) the holders of not less than 66-2/3% consummation of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLMerger requires Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Parent and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency reorganization, insolvency, moratorium or other similar lawsLaws, now or hereafter in effect, affecting creditors' ’ rights generally, generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) Assuming the accuracy of the representation and warranty in Section 4.04, the affirmative vote of the holders of a majority of the outstanding Shares to adopt this Agreement (the “Shareholder Approval”) is the only vote or consent of the holders of any class or series of the Company’s capital stock, or any of them, that is necessary in connection with the consummation of the Merger. (c) At a meeting duly called and held, the Company Board (i) determined that this Agreement and the Transactions are fair to and in the best interests of the Company’s shareholders and declared this Agreement advisable, (ii) approved this Agreement and the Transactions, (iii) directed that the adoption of this Agreement be submitted to a vote of the Company’s shareholders and (iv) resolved (subject to Section 5.02) to recommend to the Company’s shareholders that they adopt this Agreement (such recommendation, the “Company Recommendation”).

Authorization; Validity of Agreement; Company Action. The Company has the requisite full corporate power and authority to execute and deliver this AgreementAgreement and to consummate the transactions contemplated hereby, and has the requisite corporate power and authority subject to perform the Transactionsobtaining stockholder approval as described in this Section 3.3. The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company of the Transactions, have been duly and validly authorized by the Company Board of Directors, at a meeting duly called and no held on November 5, 1998 at which all of the members of the Board of Directors were present, duly adopted a resolution by a vote of five in favor and two opposed approving this Agreement and its execution, delivery and performance and the transactions contemplated hereby, recommended that the stockholders of the Company adopt this Agreement and the Merger, and determined that this Agreement and the Merger, are fair to the stockholders of the Company other than Parent and its Subsidiaries; PROVIDED, HOWEVER, any such recommendation of the Board of Directors may be withdrawn, modified or amended to the extent permitted by Section 5.5 of this Agreement. No other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than transactions contemplated hereby (except for the adoption of stockholder approval described in this Agreement by (i) the holders of not less than 66-2/3% of the outstanding shares of Company Common Stock, Series B Preferred Stock Section 3.3 and Series C Preferred Stock, as of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCL6.1(a)(ii)). This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof by Parent and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other and similar laws, now or hereafter in effect, laws affecting creditors' rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses generally and to the discretion general principles of equity. The affirmative vote of the court before which holders of a majority of the outstanding Shares are the only votes of the holders of any proceeding therefor may be broughtclass or series of the Company's capital stock necessary under the DGCL and the Company's Certificate of Incorporation to adopt this Agreement and approve the transactions contemplated hereby. Section 203 of the DGCL is not applicable to the Merger. The provisions of Article X of the Company's Certificate of Incorporation will not apply to this Agreement, the Merger or any of the transactions contemplated hereby.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite full corporate power and authority to execute execute, deliver and deliver perform its obligations under this Agreement, Agreement and has the requisite corporate power and authority other agreements to perform the Transactions. The execution and delivery be executed by the Company ofas contemplated hereunder (collectively, the "Closing Documents") and, subject, in the case of the Merger, to obtaining the vote of a majority of the outstanding shares of Company Common Stock in favor of the adoption of this Agreement (the "Required Company Vote"). The execution, delivery and the performance by the Company of its obligations under, this AgreementAgreement and the other Closing Documents, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board and, except for obtaining the approval of Directorsits stockholders as contemplated by Section 1.6 hereof, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the other Closing Documents and the consummation by the Company it of the Transactions, other than the adoption of this Agreement by (i) the holders of not less than 66-2/3% of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCL. This Agreement has been duly executed and delivered by the Company and, and assuming the due and valid authorization, execution and delivery hereof by Parent and Merger Subthe other parties thereto, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors' rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) The Special Committee has unanimously recommended to the Company Board that the Company enter into this Agreement. The Company Board, having considered and acting subsequent to the recommendation of the Special Committee, has approved and taken all corporate action required to be taken by the Company Board for the consummation of the transactions contemplated by this Agreement and has resolved (i) that this Agreement and the Transactions, taken together, are advisable and fair to, and in the best interests of, the Company and its stockholders; and (ii) to recommend that the stockholders of the Company approve and adopt this Agreement. The Company Board has directed that this Agreement be submitted to the stockholders of the Company for adoption by such stockholders.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite full corporate power and authority to execute and deliver this Agreement, Agreement and has to consummate the requisite corporate power and authority to perform transactions contemplated hereby (the “Transactions”). The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of DirectorsDirectors of the Company (the “Company Board”), and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than except that the adoption of this Agreement by (i) the holders of not less than 66-2/3% consummation of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as Merger requires the approval of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of Common Stock (the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCL“Stockholder Approval”). This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Parent and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency reorganization, insolvency, moratorium or other similar lawsLaws, now or hereafter in effect, affecting creditors' ’ rights generally, generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) Assuming the accuracy of the representation and warranty in Section 4.4, the affirmative vote of the holders of a majority of the outstanding Shares to adopt this Agreement is the only vote of the holders of any class or series of the Company’s capital stock that is necessary in connection with the consummation of the Merger and other Transactions. (c) At a meeting duly called and held, the Company Board unanimously adopted resolutions, which resolutions have not been subsequently rescinded, modified or withdrawn in any way, in which it (i) determined that this Agreement and the Transactions are fair to and in the best interests of the Company’s stockholders and declared this Agreement advisable, (ii) approved this Agreement and the Transactions, (iii) directed that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders, and (iv) resolved (subject to Section 5.2) to recommend to the Company’s stockholders that they adopt and approve this Agreement (such recommendation, the “Company Recommendation”).

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite full corporate power and authority to execute and deliver this Agreement, Agreement and has the requisite corporate power and authority to perform consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of DirectorsDirectors of the Company (the “Company Board”), and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company it of the Transactions, other than except that the adoption of this Agreement by (i) the holders of not less than 66-2/3% consummation of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as Merger requires the approval of the Record Date, voting together Company’s shareholders as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and contemplated by Section 903 of the BCL5.1. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Parent and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights generally, for the Enforceability Exceptions and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) The affirmative vote of the holders of two-thirds of the outstanding Common Shares is the only vote of the holders of any class or series of the Company’s capital stock that is necessary to adopt this Agreement. (c) At a meeting duly called and held, the Company Board unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to and in the best interests of the Company’s shareholders and has declared this Agreement advisable, (ii) approved this Agreement and the Transactions and (iii) resolved (subject to Section 5.2) to recommend to the Company’s shareholders that they adopt this Agreement and approve the Merger (such recommendation, the “Company Recommendation”).

Authorization; Validity of Agreement; Company Action. The ---------------------------------------------------- Company has the requisite corporate power and authority to execute and deliver this Agreement, and has the requisite corporate power and authority to perform the Transactions. The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company of the Transactions, have been duly and validly authorized by the Company Board of Directors, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by the Company of the Transactions, other than the adoption of this Agreement by (i) the holders of not less than 66-2/3% of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCL. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof by Parent and Merger Sub, is the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

Authorization; Validity of Agreement; Company Action. (a) The Company has the requisite full corporate power and authority to execute and deliver this Agreement, Agreement and has the requisite corporate power and authority to perform consummate the Transactions. The execution execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the consummation by the Company it of the Transactions, have been duly and validly authorized by the Company Board of DirectorsDirectors of the Company (the “Company Board”), and no other corporate action on the part of the Company is necessary to authorize the execution execution, delivery and delivery performance by the Company of this Agreement and the consummation by the Company it of the Transactions, other than except that the adoption of this Agreement by (i) the holders of not less than 66-2/3% consummation of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, as of Merger requires the Record Date, voting together as a single class, (ii) holders of a majority of the outstanding shares of Series B Preferred Stock, as of the Record Date, voting as a separate class, and (iii) holders of a majority of the outstanding shares of Series C Preferred Stock, as of the Record Date, voting as a separate class, in each case in accordance with the Company Organizational Documents and Section 903 of the BCLStockholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery hereof of this Agreement by Parent and Merger Sub, is the a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency reorganization, insolvency, moratorium or other similar lawsLaws, now or hereafter in effect, affecting creditors' ’ rights generally, generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (b) Assuming the accuracy of the representation and warranty in Section 4.4, the affirmative vote of the holders of a majority of the outstanding Shares to adopt this Agreement (the “Stockholder Approval”) is the only vote or consent of the holders of any class or series of the Company’s capital stock, or any of them, that is necessary in connection with the consummation of the Merger and the other Transactions. (c) At a meeting duly called and held, the Company Board adopted resolutions, which resolutions have not been subsequently rescinded, modified or withdrawn in any way, in which it (i) determined that this Agreement and the Transactions are fair to and in the best interests of the Company’s stockholders and declared this Agreement advisable, (ii) approved this Agreement and the Transactions, (iii) directed that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders and (iv) resolved (subject to Section 5.2) to recommend to the Company’s stockholders that they adopt this Agreement (such recommendation, the “Company Recommendation”).