Common use of Corporate Authority; Approval and Fairness Clause in Contracts

Corporate Authority; Approval and Fairness. (a) The Company has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company and no stockholder votes are necessary to authorize this Agreement, the Company’s execution and delivery of this Agreement and its performance hereunder or to consummate the transactions contemplated hereby other than, with respect to the Merger, the affirmative vote of holders of a majority of outstanding shares of Company Common Stock to adopt this Agreement in accordance with the DGCL (the “Stockholder Approval”). The Stockholder Approval is the only vote of the holders of any class or series of Company Common Stock that is necessary pursuant to applicable law, the Company Certificate of Incorporation or the Company Bylaws to adopt this Agreement and consummate the Merger. This Agreement has been duly authorized and validly executed and delivered by the Company and, assuming this Agreement is a valid and binding obligation of Parent and Merger Sub, this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency (including all Laws relating to fraudulent transfers), reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”). (b) On or prior to the date of this Agreement, (i) the Company Board has received from Sxxxxx Xxxxxxxx & Company Incorporated, its financial advisor (the “Company Financial Advisor”), its written opinion, subject to the limitations, qualifications and assumptions set forth therein, that the Merger Consideration to be received by the holders of Company Common Stock pursuant to this Agreement is fair from a financial point of view to such holders of Company Common Stock and (ii) the Company Board has, at a meeting duly called and held in which all directors were present, unanimously (A) determined that this Agreement and the transactions contemplated by this Agreement, including the Merger, are advisable, fair to and in the best interests of the Company and its stockholders, (B) approved and declared advisable the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth in this Agreement, and (C) resolved to recommend that the Company Stockholders adopt this Agreement and approve the Merger in accordance with the DGCL (collectively, the “Company Recommendation”), which Company Recommendation, subject to Section 6.4, has not been subsequently withdrawn, rescinded or modified in any manner.

Corporate Authority; Approval and Fairness. (a) The Company has all necessary requisite corporate power and authority and has taken all corporate action necessary in order to execute execute, deliver and deliver this Agreement, to perform its obligations hereunder under this Agreement and each Transaction Document to which it is a party and to consummate the transactions contemplated by this Agreement. The execution and delivery Transactions, subject only to adoption of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company and no stockholder votes are necessary to authorize this Agreement, the Company’s execution and delivery of this Agreement and its performance hereunder or to consummate the transactions contemplated hereby other than, with respect to the Merger, the affirmative vote of (a) holders of a majority of the voting power of the outstanding shares of Company Common Stock to adopt this Agreement in accordance with and Company Preferred Stock (treated as Company Common Stock on an “as converted basis”) voting together as a single class and (b) holders of a majority of the DGCL outstanding shares of Company Preferred Stock (treated as Company Common Stock on an “as converted basis”) voting together as a single class (the “Stockholder Company Requisite Approval”). The Stockholder Approval is the only vote of the holders of any class or series of Company Common Stock that is necessary pursuant to applicable law, the Company Certificate of Incorporation or the Company Bylaws to adopt this Agreement and consummate the Merger. This Agreement has been been, and each Transaction Document will be, duly authorized and validly executed and delivered by the Company and, assuming this Agreement is due authorization and execution by each other party hereto and thereto, constitutes, or will constitute, as applicable, a valid and binding obligation of Parent and Merger Sub, this Agreement constitutes a legal, valid and binding obligation agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency (including all Laws relating to insolvency, fraudulent transfers)transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”). (b) On or prior to . The Company Requisite Approval is the date only vote of this Agreement, (i) the Company Board has received from Sxxxxx Xxxxxxxx & Company Incorporated, its financial advisor (the “Company Financial Advisor”), its written opinion, subject to the limitations, qualifications and assumptions set forth therein, that the Merger Consideration to be received by the holders of Company Common Stock pursuant to this Agreement is fair from a financial point any class or series of view to such holders of Company Common Stock and (ii) the Company Board has, at a meeting duly called and held in which all directors were present, unanimously (A) determined that this Agreement and the transactions contemplated by this Agreement, including the Merger, are advisable, fair to and in the best interests capital stock of the Company required to approve and its stockholders, (B) approved and declared advisable the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth in this Agreement, and (C) resolved to recommend that the Company Stockholders adopt this Agreement and approve the Transactions. (b) The Company Board has (i) unanimously determined that the Merger is fair to, and in accordance with the DGCL (collectivelybest interests of, the “Company Recommendation”)and the Company Stockholders, which approved and declared advisable this Agreement, the Merger and the other Transactions, and resolved to recommend adoption of this Agreement to the holders of shares of Company Recommendation, subject Stock and (ii) directed that this Agreement be submitted to Section 6.4, has not been subsequently withdrawn, rescinded or modified in any mannerthe Company Stockholders for their adoption.

Corporate Authority; Approval and Fairness. (ai) The Company has all necessary requisite corporate power and authority and has taken all corporate action necessary in order to execute and deliver this Agreement, Agreement and to perform its obligations hereunder under this Agreement and to consummate the transactions Merger and any other transaction contemplated by this Agreement. The execution and delivery , subject only to adoption of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company and no stockholder votes are necessary to authorize this Agreement, the Company’s execution and delivery of this Agreement and its performance hereunder or to consummate the transactions contemplated hereby other than, with respect to the Merger, the affirmative vote of holders of a majority of the outstanding shares of Company Common Stock Shares entitled to adopt this Agreement in accordance with the DGCL vote on such matter at a stockholders’ meeting duly called and held for such purpose (the “Stockholder ApprovalRequisite Company Vote”). The Stockholder Approval is the only vote of the holders of any class or series of Company Common Stock that is necessary pursuant to applicable law, the Company Certificate of Incorporation or the Company Bylaws to adopt this Agreement and consummate the Merger. This Agreement has been duly authorized and validly executed and delivered by the Company and, assuming this Agreement is and constitutes a valid and binding obligation of Parent and Merger Sub, this Agreement constitutes a legal, valid and binding obligation agreement of the Company, Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency (including all Laws relating to insolvency, fraudulent transfers)transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”). (bii) On or prior to (A) The Company Board, acting upon the date unanimous recommendation of this Agreementthe Special Committee, has unanimously (i) the Company Board has received from Sxxxxx Xxxxxxxx & Company Incorporated, its financial advisor (the “Company Financial Advisor”), its written opinion, subject to the limitations, qualifications and assumptions set forth therein, determined that the Merger Consideration to be received by the holders of Company Common Stock pursuant to this Agreement is fair from a financial point of view to such holders of Company Common Stock and (ii) the Company Board hasto, at a meeting duly called and held in which all directors were present, unanimously (A) determined that this Agreement and the transactions contemplated by this Agreement, including the Merger, are advisable, fair to and in the best interests of of, the Company and its stockholders, (Bii) approved and declared advisable the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth in this Agreement, Merger and (Ciii) resolved to recommend that the Company Stockholders adopt this Agreement be adopted by the Company’s stockholders at a stockholders’ meeting duly called and approve the Merger in accordance with the DGCL held for such purpose (collectively, the “Company Recommendation”)) and (B) the Special Committee received the opinion of Centerview Partners LLC that as of the date of such opinion, which Company Recommendation, and based upon and subject to Section 6.4the various assumptions made, has procedures followed, matters considered, and qualifications and limitations on the review undertaken in preparing such opinion as set forth therein, the Per Share Merger Consideration to be paid to the holders of Shares (other than Excluded Shares and Shares held by any affiliate of Parent) pursuant to this Agreement is fair, from a financial point of view, to such holders. It is agreed and understood that such opinion is for the benefit of the Special Committee and may not been subsequently withdrawn, rescinded be relied on by Parent or modified in any mannerMerger Sub.

Corporate Authority; Approval and Fairness. (ai) The Company has all necessary requisite corporate power and authority and has taken all corporate action necessary in order to execute and execute, deliver this Agreementand, subject only to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery adoption of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company and no stockholder votes are necessary to authorize this Agreement, the Company’s execution and delivery of this Agreement and its performance hereunder or to consummate the transactions contemplated hereby other than, with respect to the Merger, the affirmative vote of holders of a majority of the outstanding shares of Company Common Stock Shares entitled to adopt this Agreement in accordance with the DGCL vote on such matter at a stockholders’ meeting duly called and held for such purpose (the “Stockholder ApprovalCompany Requisite Vote”). The Stockholder Approval is the only vote of the holders of any class or series of Company Common Stock that is necessary pursuant to applicable law, the Company Certificate of Incorporation or the Company Bylaws to adopt perform its obligations under this Agreement and consummate the Merger. This Agreement has been duly authorized and validly executed and delivered by the Company and, assuming this Agreement is and constitutes a valid and binding obligation of Parent and Merger Sub, this Agreement constitutes a legal, valid and binding obligation agreement of the Company, Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency (including all Laws relating to insolvency, fraudulent transfers)transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”). (bii) On or prior The board of directors of the Company has (A) unanimously determined that the Merger is fair to, and in the best interests of, the Company and its stockholders, approved and declared advisable this Agreement and the Merger and the other transactions contemplated hereby and resolved to recommend adoption of this Agreement to the date holders of this Agreement, (i) the Company Board has received from Sxxxxx Xxxxxxxx & Company Incorporated, its financial advisor Shares (the “Company Financial AdvisorRecommendation”), its written opinion, subject (B) directed that this Agreement be submitted to the limitationsholders of Shares for their adoption and (C) received the opinion of its financial advisor, qualifications and assumptions set forth thereinMxxxxx Sxxxxxx & Co. Incorporated, to the effect that the Merger Consideration consideration to be received by the holders of Company Common Stock pursuant to this Agreement the Shares in the Merger is fair from a financial point of view view, as of the date of such opinion, to such holders (other than Parent and its Subsidiaries). The board of Company Common Stock and (ii) the Company Board has, at a meeting duly called and held in which all directors were present, unanimously (A) determined that this Agreement and the transactions contemplated by this Agreement, including the Merger, are advisable, fair to and in the best interests of the Company and its stockholders, has taken all action so that Parent will not be an “interested stockholder” or prohibited from entering into or consummating a “business combination” with the Company (Bin each case as such term is used in Section 203 of the DGCL) approved and declared advisable as a result of the execution, delivery and performance execution of this Agreement and or the consummation of the transactions in the manner contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth in this Agreement, and (C) resolved to recommend that the Company Stockholders adopt this Agreement and approve the Merger in accordance with the DGCL (collectively, the “Company Recommendation”), which Company Recommendation, subject to Section 6.4, has not been subsequently withdrawn, rescinded or modified in any manner.

Corporate Authority; Approval and Fairness. (ai) The Company has all necessary requisite corporate power and authority and has taken all corporate action necessary in order to execute and deliver this AgreementAgreement and, subject only to approval of this Agreement by the holders of a majority of the outstanding Shares entitled to vote on such matter at a stockholders’ meeting duly called and held for such purpose (the “Company Requisite Vote”), to perform its obligations hereunder under this Agreement and to consummate the Merger (subject to the filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL). Except for the Company Requisite Vote, no other corporate proceedings or approvals on the part of the Company are necessary to authorize, adopt or approve, as applicable, this Agreement or to consummate the Merger and the other transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company and no stockholder votes are necessary to authorize this Agreement, the Company’s execution and delivery of this Agreement and its performance hereunder or to consummate the transactions contemplated hereby other than, with respect to the Merger, the affirmative vote of holders of a majority of outstanding shares of Company Common Stock to adopt this Agreement in accordance with the DGCL (the “Stockholder Approval”). The Stockholder Approval is the only vote of the holders of any class or series of Company Common Stock that is necessary pursuant to applicable law, the Company Certificate of Incorporation or the Company Bylaws to adopt this Agreement and consummate the Merger. This Agreement has been duly authorized and validly executed and delivered by the Company and, assuming this Agreement is a constitutes the valid and binding obligation agreement of Parent and Merger Sub, this Agreement constitutes a legal, valid and binding obligation agreement of the Company, Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency (including all Laws relating to insolvency, fraudulent transfers)transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles regardless of whether enforcement is considered in a proceeding in equity or at law (the “Bankruptcy and Equity Exception”). (bii) On or prior to the date of this Agreement, (i) the The Company Board has (A) made the Company Recommendation, (B) directed that this Agreement be submitted to the holders of Shares for their approval at a stockholders’ meeting duly called and held for such purpose and (C) received from Sxxxxx Xxxxxxxx & Company Incorporated, the opinion of its financial advisor (the “Company Financial Advisor”), its written opinion, subject to the limitations, qualifications and assumptions set forth therein, effect that the Merger Consideration consideration to be received by the holders of Company Common Stock pursuant to this Agreement the Shares in the Merger is fair from a financial point of view view, as of the date of such opinion, to such holders holders. It is agreed and understood that such opinions are for the benefit of Company Common Stock and (ii) the Company Board has, at a meeting duly called and held in which all directors were present, unanimously (A) determined that this Agreement and the transactions contemplated may not be relied on by this Agreement, including the Merger, are advisable, fair to and in the best interests of the Company and its stockholders, (B) approved and declared advisable the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth in this Agreement, and (C) resolved to recommend that the Company Stockholders adopt this Agreement and approve the Parent or Merger in accordance with the DGCL (collectively, the “Company Recommendation”), which Company Recommendation, subject to Section 6.4, has not been subsequently withdrawn, rescinded or modified in any mannerSub.

Corporate Authority; Approval and Fairness. (ai) The Company has all necessary requisite corporate power and authority and has taken all corporate action necessary in order to execute execute, deliver and deliver this Agreement, to perform its obligations hereunder under this Agreement and to consummate the Merger and the other transactions contemplated by this Agreement. The execution and delivery , subject only to adoption of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company and no stockholder votes are necessary to authorize this Agreement, the Company’s execution and delivery of this Agreement and its performance hereunder or to consummate the transactions contemplated hereby other than, with respect to the Merger, the affirmative vote of holders of a majority of the outstanding shares of Company Common Stock Shares entitled to adopt this Agreement in accordance with the DGCL vote on such matter at a stockholders’ meeting duly called and held for such purpose (the “Stockholder ApprovalRequisite Company Vote”). The Stockholder Approval is the only vote of the holders of any class or series of Company Common Stock that is necessary pursuant to applicable law, the Company Certificate of Incorporation or the Company Bylaws to adopt this Agreement and consummate the Merger. This Agreement has been duly authorized and validly executed and delivered by the Company and, assuming this Agreement is and constitutes a valid and binding obligation of Parent and Merger Sub, this Agreement constitutes a legal, valid and binding obligation agreement of the Company, Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency (including all Laws relating to insolvency, fraudulent transfers)transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”). (bii) On or prior The Company Board has (A) unanimously determined that the Merger is fair to, and in the best interests of, the Company and its stockholders, and approved and declared advisable this Agreement and the Merger and the other transactions contemplated hereby and resolved to recommend adoption of this Agreement to the holders of Shares (the “Company Recommendation”), (B) directed that this Agreement be submitted to the holders of Shares for their adoption and (C) received the opinion of its outside financial advisor, X.X. Xxxxxx Securities LLC, dated as of the date of this Agreement, (i) substantially to the Company Board has received from Sxxxxx Xxxxxxxx & Company Incorporatedeffect that, its financial advisor (as of the “Company Financial Advisor”), its written opinion, date of such opinion and subject to the assumptions, limitations, qualifications and assumptions set forth thereinother matters considered in the preparation thereof, that the Merger Consideration to be received by the holders of Company Common Stock Shares in the Merger pursuant to this Agreement is fair fair, from a financial point of view to such holders holders. The Company shall, promptly following the execution and delivery of Company Common Stock this Agreement by all parties, deliver a copy of such opinion to Parent solely for information purposes, it being understood and (ii) agreed that such opinion is for the benefit of the Company Board has, at a meeting duly called and held in which all directors were present, unanimously (A) determined that this Agreement and the transactions contemplated may not be relied upon by this Agreement, including the Merger, are advisable, fair to and in the best interests of the Company and its stockholders, (B) approved and declared advisable the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth in this Agreement, and (C) resolved to recommend that the Company Stockholders adopt this Agreement and approve the Parent or Merger in accordance with the DGCL (collectively, the “Company Recommendation”), which Company Recommendation, subject to Section 6.4, has not been subsequently withdrawn, rescinded or modified in any mannerSub.

Corporate Authority; Approval and Fairness. (ai) The Company has all necessary requisite corporate power and authority and has taken all corporate action necessary in order to execute and execute, deliver this Agreementand, subject only to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery adoption of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company and no stockholder votes are necessary to authorize this Agreement, the Company’s execution and delivery of this Agreement and its performance hereunder or to consummate the transactions contemplated hereby other than, with respect to the Merger, the affirmative vote of holders of Shares carrying a majority of the votes entitled to be cast by holders of the outstanding shares of Company Common Stock to adopt this Agreement in accordance with the DGCL Shares (the “Stockholder ApprovalCompany Requisite Vote”). The Stockholder Approval is the only vote of the holders of any class or series of Company Common Stock that is necessary pursuant to applicable law) at a stockholders’ meeting duly called and held for such purpose, the Company Certificate of Incorporation or the Company Bylaws to adopt perform its obligations under this Agreement and consummate the Merger. This Agreement has been duly authorized and validly executed and delivered by the Company and, assuming this Agreement is and constitutes a valid and binding obligation of Parent and Merger Sub, this Agreement constitutes a legal, valid and binding obligation agreement of the Company, Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency (including all Laws relating to insolvency, fraudulent transfers)transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”). (bii) On or prior The board of directors of the Company has (A) unanimously determined that the Merger is fair to, and in the best interests of, the Company and its stockholders, approved and declared advisable this Agreement and the Merger and the other transactions contemplated hereby and resolved to recommend adoption of this Agreement to the date holders of this Agreement, (i) the Company Board has received from Sxxxxx Xxxxxxxx & Company Incorporated, its financial advisor Shares (the “Company Financial AdvisorRecommendation”), (B) directed that this Agreement be submitted to the holders of Shares for their adoption and (C) received the opinion of its written financial advisor, Credit Suisse Securities (USA) LLC, to the effect that, as of the date of such opinion, subject to the limitations, qualifications and assumptions set forth therein, that the Per Share Merger Consideration to be received by the holders of Company Common Stock pursuant the Shares (other than Parent and its Subsidiaries and other than any holder that is a party to this Agreement a Voting Agreement) in the Merger is fair from a financial point of view to such holders holders. The board of Company Common Stock and (ii) the Company Board has, at a meeting duly called and held in which all directors were present, unanimously (A) determined that this Agreement and the transactions contemplated by this Agreement, including the Merger, are advisable, fair to and in the best interests of the Company and its stockholders, has taken all action so that Parent will not be an “interested stockholder” or prohibited from entering into or consummating a “business combination” with the Company (Bin each case as such term is used in Section 203 of the DGCL) approved and declared advisable as a result of the execution, delivery and performance execution of this Agreement and or the consummation of the transactions in the manner contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth in this Agreement, and (C) resolved to recommend that the Company Stockholders adopt this Agreement and approve the Merger in accordance with the DGCL (collectively, the “Company Recommendation”), which Company Recommendation, subject to Section 6.4, has not been subsequently withdrawn, rescinded or modified in any manner.