Common use of Corporate Authority; Enforceability Clause in Contracts

Corporate Authority; Enforceability. Each of Parent and Merger Sub has all necessary corporate power and authority to execute and deliver this Agreement and all other agreements and documents contemplated hereby to which it is or will be a party, and, assuming the Merger is consummated in accordance with Section 251(h) of the DGCL, to perform its obligations hereunder and to consummate the Transactions. The board of directors of Parent has adopted resolutions approving the execution, delivery and performance by Parent of this Agreement and the consummation of the Transactions. The board of directors of Merger Sub has adopted resolutions (a) approving this Agreement and the Transactions and declaring it advisable to enter into this Agreement and consummate the Transactions and (b) recommending that Merger Sub’s stockholder adopt this Agreement. Parent, as the sole stockholder of Merger Sub, will approve this Agreement and the Transactions immediately following the execution and delivery of this Agreement. The execution, delivery and performance of this Agreement by Parent and Merger Sub have been duly and validly authorized by all necessary corporate action (including any stockholder vote or other action) on the part of Parent and Merger Sub and no other corporate or stockholder proceedings on the part of Parent or Merger Sub are necessary to authorize this Agreement or to consummate the Transactions. This Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Company, constitutes a legal, valid and binding agreement of each of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Enforceability Exceptions. Assuming the accuracy of the representations and warranties of the Company and its Subsidiaries set forth in Section 3.3, no Takeover Laws apply or will apply to Parent or Merger Sub pursuant to this Agreement or the Transactions.

Corporate Authority; Enforceability. Each of Parent and Merger Sub The Company has all necessary corporate full right, power and authority to execute issue and deliver this Agreement sell the Notes as herein contemplated and all other agreements the Company has full power and documents contemplated hereby authority to which it is or will be a party, and, assuming the Merger is consummated in accordance with Section 251(h) of the DGCL, to enter into and perform its obligations hereunder under this Agreement, the Notes, the Security Agreement (defined in Section 7(a)), and to consummate the TransactionsIntellectual Property Security Agreement (defined in Section 7(a)). The board of directors of Parent has adopted resolutions approving the execution, delivery and performance by Parent of this Agreement and the consummation of the Transactions. The board of directors of Merger Sub has adopted resolutions (a) approving this Agreement and the Transactions and declaring it advisable to enter into this Agreement and consummate the Transactions and (b) recommending that Merger Sub’s stockholder adopt this Agreement. Parent, as the sole stockholder of Merger Sub, will approve this Agreement and the Transactions immediately following the execution and delivery of this Agreement. The execution, delivery the Notes, the Security Agreement, and performance of this the Intellectual Property Security Agreement by Parent the Company and Merger Sub the consummation of the transactions contemplated herein and therein have been duly authorized and validly authorized approved by all necessary requisite corporate action action, and each of this Agreement, the Notes, the Security Agreement, and the Intellectual Property Security Agreement are a valid and legally binding obligation of the Company; provided, however, (including i) that insofar as any stockholder vote or other action) foreclosure on the part Collateral (as defined in Section 6(a) hereof) would constitute a sale of Parent and Merger Sub and no other corporate all or stockholder proceedings on the part substantially all of Parent or Merger Sub are necessary to authorize this Agreement or to consummate the Transactions. This Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Company’s assets requiring stockholder approval, constitutes such stockholder approval has not been obtained, and (ii) that the Company must file a legalCertificate of Designations with the Secretary of State of the State of Delaware to designate 2,100,000 shares of its currently undesignated Preferred Stock, valid and binding agreement of each of Parent and Merger Sub$0.01 par value per share, enforceable against each of them as Series B Preferred Stock, in accordance with its terms, subject order to make such shares available for the payment to the Enforceability Exceptions. Assuming Holders of dividends on such shares of Series B Preferred Stock, pursuant to the accuracy terms of the representations Company’s Amended and warranties Restated Certificate of Incorporation (the “Charter”), and that, in the event that the dividends payable under the Charter to the Holders are likely to exceed 2,100,000 shares of Series B Preferred Stock, the Company and shall be required to include a proposal in the proxy statement for its Subsidiaries set forth annual meeting of stockholders to be held in Section 3.3, no Takeover Laws apply or will apply 2009 to Parent or Merger Sub pursuant amend its Charter to this Agreement or increase the Transactionsauthorized number of shares of Series B Preferred Stock.

Corporate Authority; Enforceability. Each of Parent and Merger Sub (a) The Company has all necessary corporate power and authority to execute and deliver this Agreement and all other agreements and documents contemplated hereby to which it is or will be a party, party and, assuming the Merger is consummated in accordance with Section 251(h) of the DGCL, to perform its obligations hereunder and to consummate the Transactions. The board Company Board at a meeting duly called and held has by a vote of directors the directors: (i) determined and declared that the Transactions, including the Merger, are fair to, advisable and in the best interests of Parent has adopted resolutions approving the Company and its stockholders, (ii) in accordance with the requirements of the DGCL, approved the terms and conditions of this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions, and authorized the execution, delivery and performance by Parent of this Agreement and the consummation of the Transactions. The board of directors of Merger Sub has adopted resolutions , (aiii) approving resolved that this Agreement and the Transactions Merger shall be governed by and declaring it advisable to enter into this Agreement and consummate effected under Section 251(h) of the Transactions DGCL and (biv) recommending resolved to recommend that Merger Subthe Company’s stockholder adopt this Agreement. Parent, as stockholders (other than Parent and its Subsidiaries) accept the sole stockholder Offer and tender their shares of Merger Sub, will approve this Agreement and Common Stock in the Transactions immediately following the execution and delivery of this AgreementOffer. The execution, delivery and performance of this Agreement by Parent the Company and Merger Sub the consummation by the Company of the Transactions have been duly and validly authorized by all necessary corporate action (including any stockholder vote or other action) on the part of Parent and Merger Sub the Company and no other corporate or stockholder proceedings on the part of Parent or Merger Sub the Company are necessary to authorize this Agreement or to consummate the TransactionsTransactions (other than the Company Board’s delivery of its recommendation to the Company’s stockholders as contemplated under clause (iv) above and as required in accordance with Section 1.2(a), and the filing with the Secretary of State of the State of Delaware of the Certificate of Merger as required by the DGCL). This Agreement has been duly executed and delivered by Parent and Merger Sub the Company and, assuming the due authorization, execution and delivery hereof by the Companyeach of Parent and Merger Sub, constitutes a legal, valid and binding agreement of each of Parent and Merger Subthe Company, enforceable against each of them the Company in accordance with its terms, subject to the Enforceability Exceptions. . (b) Assuming the accuracy of the representations and warranties of the Company Parent and its Subsidiaries Merger Sub set forth in Section 3.34.2(c), no Takeover Laws the Company Board has taken all appropriate actions so that the restrictions on business combinations contained in Section 203 of the DGCL will not apply with respect to, or will apply to Parent or Merger Sub pursuant to as a result of, the execution of this Agreement or the consummation of the Transactions, including the Merger, without any further action on the part of the stockholders of the Company or the Company Board. No other “fair price,” “moratorium,” “control share acquisition,” “business combination” or other anti-takeover statute or Law (each, together with Section 203 of the DGCL, a “Takeover Law”) is applicable to the Company, the Company Stockholder Agreements, the Offer, the Merger or any of the other Transactions. None of the Company or any of its Subsidiaries has adopted a stockholder rights agreement, rights plan, “poison pill” or other similar agreement that is currently in effect.

Corporate Authority; Enforceability. Each of Parent and Merger Sub (a) The Company has all necessary corporate power and authority to execute and deliver this Agreement and all other agreements and documents contemplated hereby to which it is or will be a party, party and, assuming the Merger is consummated in accordance with Section 251(h) of the DGCL, to perform its obligations hereunder and to consummate the Transactions. The board Company Board at a meeting duly called and held has by a vote of directors the directors: (i) determined and declared that the Transactions, including the Merger, are fair to, advisable and in the best interests of Parent has adopted resolutions approving the Company and its stockholders, (ii) in accordance with the requirements of the DGCL, approved the terms and conditions of this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions, and authorized the execution, delivery and performance by Parent of this Agreement and the consummation of the Transactions. The board of directors of Merger Sub has adopted resolutions , (aiii) approving resolved that this Agreement and the Transactions Table of Contents Merger shall be governed by and declaring it advisable to enter into this Agreement and consummate effected under Section 251(h) of the Transactions DGCL and (biv) recommending resolved to recommend that Merger Subthe Company’s stockholder adopt this Agreement. Parent, as stockholders (other than Parent and its Subsidiaries) accept the sole stockholder Offer and tender their shares of Merger Sub, will approve this Agreement and Common Stock in the Transactions immediately following the execution and delivery of this AgreementOffer. The execution, delivery and performance of this Agreement by Parent the Company and Merger Sub the consummation by the Company of the Transactions have been duly and validly authorized by all necessary corporate action (including any stockholder vote or other action) on the part of Parent and Merger Sub the Company and no other corporate or stockholder proceedings on the part of Parent or Merger Sub the Company are necessary to authorize this Agreement or to consummate the TransactionsTransactions (other than the Company Board’s delivery of its recommendation to the Company’s stockholders as contemplated under clause (iv) above and as required in accordance with Section 1.2(a), and the filing with the Secretary of State of the State of Delaware of the Certificate of Merger as required by the DGCL). This Agreement has been duly executed and delivered by Parent and Merger Sub the Company and, assuming the due authorization, execution and delivery hereof by the Companyeach of Parent and Merger Sub, constitutes a legal, valid and binding agreement of each of Parent and Merger Subthe Company, enforceable against each of them the Company in accordance with its terms, subject to the Enforceability Exceptions. . (b) Assuming the accuracy of the representations and warranties of the Company Parent and its Subsidiaries Merger Sub set forth in Section 3.34.2(c), no Takeover Laws the Company Board has taken all appropriate actions so that the restrictions on business combinations contained in Section 203 of the DGCL will not apply with respect to, or will apply to Parent or Merger Sub pursuant to as a result of, the execution of this Agreement or the consummation of the Transactions, including the Merger, without any further action on the part of the stockholders of the Company or the Company Board. No other “fair price,” “moratorium,” “control share acquisition,” “business combination” or other anti-takeover statute or Law (each, together with Section 203 of the DGCL, a “Takeover Law”) is applicable to the Company, the Company Stockholder Agreements, the Offer, the Merger or any of the other Transactions. None of the Company or any of its Subsidiaries has adopted a stockholder rights agreement, rights plan, “poison pill” or other similar agreement that is currently in effect.