Common use of Corporate Authorization; Enforceability Clause in Contracts

Corporate Authorization; Enforceability. (a) The Company has the requisite corporate power and authority to enter into and to perform its obligations under this Agreement and to consummate the Merger and the other transactions contemplated by this Agreement, subject, in the case of the Merger, to receipt of the Requisite Stockholder Vote. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Merger and the other transactions contemplated hereby have been duly and validly authorized by the Company Board, subject, in the case of the Merger, to receipt of the Requisite Stockholder Vote. No other corporate proceedings on the part of the Company are necessary to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the provisions of the DGCL. Subject to Section 5.3(d), the Company Board, acting upon the recommendation of the Strategic Alternatives Committee, has unanimously, by resolutions adopted at a meeting duly called and held, (i) approved and declared advisable this Agreement and the transactions contemplated hereby, (ii) determined that the terms of this Agreement are fair to, and in the best interests of, the Company and its stockholders, and (iii) resolved to recommend that the Company’s stockholders vote in favor of adoption of this Agreement (the “Company Board Recommendation”) and directed that the Agreement be submitted to the holders of the Shares for their adoption of the plan of merger contained in this Agreement at a stockholders meeting duly called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock of the Company necessary for the Company to adopt this Agreement and for the Company to consummate the Merger and the other transactions contemplated hereby.

Corporate Authorization; Enforceability. (a) The Company has the all requisite corporate power and authority to enter into and to perform its obligations under this Agreement and and, subject to adoption of this Agreement by the Company Stockholder Approval, to consummate the transactions contemplated by this Agreement. The Company Board, at a meeting duly called and held prior to the execution of this Agreement, duly and unanimously: (i) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into this Agreement with Parent and Purchaser, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and the other transactions contemplated by this Agreementhereby, subject, in and (iii) resolved to recommend that the case stockholders of the Merger, to receipt Company adopt this Agreement (the “Company Board Recommendation”) and directed that such matter be submitted for consideration of the Requisite stockholders of the Company at the special meeting of the stockholders of the Company to be held to consider the adoption of this Agreement (as such special meeting may be adjourned or reconvened from time to time, the “Company Stockholder VoteMeeting”). The execution, delivery and performance of this Agreement by the Company of this Agreement and the consummation by the Company of the Merger and the other transactions contemplated hereby by this Agreement have been duly and validly authorized by all necessary corporate action on the Company Boardpart of the Company, subject, except in the case of the Merger, Merger which is subject to receipt of the Requisite Stockholder Vote. No other corporate proceedings on the part of the Company are necessary to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote Approval and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the provisions of as required by the DGCL. Subject to Section 5.3(d), the Company Board, acting upon the recommendation of the Strategic Alternatives Committee, has unanimously, by resolutions adopted at a meeting duly called and held, (i) approved and declared advisable this Agreement and the transactions contemplated hereby, (ii) determined that the terms of this Agreement are fair to, and in the best interests of, the Company and its stockholders, and (iii) resolved to recommend that the Company’s stockholders vote in favor of adoption of this Agreement (the “Company Board Recommendation”) and directed that the Agreement be submitted to the holders of the Shares for their adoption of the plan of merger contained in this Agreement at a stockholders meeting duly called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock of the Company necessary for the Company to adopt this Agreement and for the Company to consummate the Merger and the other transactions contemplated hereby.

Corporate Authorization; Enforceability. (a) The Company has the all requisite corporate power and authority to enter into and to perform its obligations under this Agreement and and, subject to adoption of this Agreement by the Requisite Company Vote in the case of the consummation of the Merger, to consummate the Merger transactions contemplated by this Agreement. The Company Board, at a meeting duly called and held prior to the execution of this Agreement, duly: (i) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into this Agreement with Parent and Purchaser, (ii) approved the execution, delivery and performance of this Agreement, including the Offer, the Merger, the Top-Up Option and the issuance of Shares of Common Stock upon the exercise thereof and the other transactions contemplated by hereby, (iii) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares pursuant to the Offer and adopt this AgreementAgreement and, subject, in the case of if required to consummate the Merger, to receipt vote their Shares in favor of the Requisite Stockholder Voteadoption of this Agreement (clauses, (i), (ii) and (iii) collectively, the “Company Board Recommendation”) and (iv) directed that such matter be submitted for consideration of the stockholders of the Company at the Company Stockholders Meeting. The execution, delivery and performance of this Agreement by the Company of this Agreement and the consummation by the Company of the Merger and the other transactions contemplated hereby by this Agreement have been duly and validly authorized by all necessary corporate action on the Company Boardpart of the Company, subject, except in the case of the Merger, Merger which is subject to receipt of the Requisite Stockholder Company Vote. No other corporate proceedings on the part of the Company are necessary to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the provisions of the DGCL. Subject to Section 5.3(d), the Company Board, acting upon the recommendation of the Strategic Alternatives Committee, has unanimously, by resolutions adopted at a meeting duly called and held, (i) approved and declared advisable this Agreement and the transactions contemplated hereby, (ii) determined that the terms of this Agreement are fair to, and in the best interests of, the Company and its stockholders, and (iii) resolved to recommend that the Company’s stockholders vote in favor of adoption of this Agreement (the “Company Board Recommendation”) and directed that the Agreement be submitted to the holders of the Shares for their adoption of the plan of merger contained in this Agreement at a stockholders meeting duly called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock of the Company necessary for the Company to adopt this Agreement and for the Company to consummate the Merger and the other transactions contemplated hereby.

Corporate Authorization; Enforceability. (a) The Company Each of Parent and Merger Sub has the requisite corporate all necessary power and authority to enter into and this Agreement, to perform its their obligations under this Agreement hereunder and to consummate the Transactions. The respective boards of directors of Parent and Merger Sub have, on the terms and subject to the conditions set forth herein, approved this Agreement and the other transactions contemplated by Transactions, declared it advisable for Parent and Merger Sub, respectively, to enter into this AgreementAgreement and approved the execution, subjectdelivery and performance of this Agreement in accordance with its terms, and in the case of the Mergerboard of directors of Merger Sub, recommended that Parent, in its capacity as the sole stockholder of Merger Sub, adopt this Agreement. Parent, in its capacity as the sole stockholder of Merger Sub, has executed and delivered a written consent adopting this Agreement, such consent by its terms to receipt become effective immediately following the execution and delivery of this Agreement. Except as expressly set forth in this Section 4.3, no other corporate action (including any stockholder vote or other action) on the Requisite Stockholder Vote. The part of Parent or Merger Sub is necessary to authorize the execution, delivery and performance by the Company Parent and Merger Sub of this Agreement and the consummation by the Company Parent and Merger Sub of the Merger and the other transactions contemplated hereby have Transactions. This Agreement has been duly executed and validly authorized delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Company BoardCompany, subjectconstitutes 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 case Enforceability Exceptions. Assuming the accuracy of the Mergerrepresentations and warranties set forth in Article III, no Takeover Laws apply or will apply to receipt of the Requisite Stockholder Vote. No other corporate proceedings on the part of the Company are necessary Parent or Merger Sub pursuant to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the provisions of the DGCL. Subject to Section 5.3(d), the Company Board, acting upon the recommendation of the Strategic Alternatives Committee, has unanimously, by resolutions adopted at a meeting duly called and held, (i) approved and declared advisable this Agreement and the transactions contemplated hereby, (ii) determined that the terms of this Agreement are fair to, and in the best interests of, the Company and its stockholders, and (iii) resolved to recommend that the Company’s stockholders vote in favor of adoption of this Agreement (the “Company Board Recommendation”) and directed that the Agreement be submitted to the holders of the Shares for their adoption of the plan of merger contained in this Agreement at a stockholders meeting duly called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock of the Company necessary for the Company to adopt this Agreement and for the Company to consummate the Merger and the other transactions contemplated herebyTransactions.

Corporate Authorization; Enforceability. (a) The Company has the all requisite corporate power and authority to enter into and to perform its obligations under this Agreement and and, subject to adoption of this Agreement by the Requisite Company Vote, to consummate the Merger and the other transactions contemplated by this Agreement, subjectexcluding the Asset Sales. The Board of Directors of the Company (the “Company Board”), acting upon the unanimous recommendation of the Negotiation Committee, at a duly held meeting has, by unanimous vote of all of the directors (other than Xxxxxxx X. Xxxxxx and R. Xxxxxxxxxxx Xxxxx-Xxxxx, each of whom abstained), (i) determined that it is in the case best interests of the MergerCompany and its stockholders (other than stockholders who invest in Parent or MergerCo), and declared it advisable, to receipt of enter into this Agreement with Parent and MergerCo, (ii) approved the Requisite Stockholder Vote. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Merger and the other transactions contemplated hereby have been duly and validly authorized by the Company Board, subject, in the case of the Merger, to receipt of the Requisite Stockholder Vote. No other corporate proceedings on the part of the Company are necessary to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the provisions of the DGCL. Subject to Section 5.3(d), the Company Board, acting upon the recommendation of the Strategic Alternatives Committee, has unanimously, by resolutions adopted at a meeting duly called and held, (i) approved and declared advisable this Agreement and the transactions contemplated hereby, (ii) determined that including the terms of this Agreement are fair to, and in Merger but excluding the best interests of, the Company and its stockholdersAsset Sales, and (iii) subject to a Recommendation Change (as defined below) to the extent provided for under Section 5.3, resolved to recommend that the Company’s stockholders vote in favor of adoption of the Company adopt this Agreement (including the recommendation of the Negotiation Committee, the “Company Board Recommendation”) and directed that the Agreement such matter be submitted to the holders for consideration of the Shares for their adoption of the plan of merger contained in this Agreement at a stockholders meeting duly called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock of the Company necessary for at the Company to adopt Stockholders Meeting. The execution, delivery and performance of this Agreement and for by the Company to consummate the Merger and the other consummation by the Company of the transactions contemplated herebyby this Agreement, excluding the Asset Sales, have been duly and validly authorized by all necessary corporate action on the part of the Company, subject to obtaining the Requisite Company Vote.

Corporate Authorization; Enforceability. (a) The Company has the all requisite corporate power and authority to enter into and to perform its obligations under this Agreement and and, subject to adoption of this Agreement by the Requisite Company Vote in the case of the consummation of the Merger, to consummate the Merger and the other transactions contemplated by this Agreement. The Special Committee, subjectwhich is comprised solely of persons who (i) are “disinterested directors” (as defined in Section 302A.673 of the MBCA) and (ii) meet the qualifications set forth in Subdivision 2 of Section 302A.675 of the MBCA, in at a meeting duly called and held prior to the case execution of this Agreement at which all directors who were members of the Special Committee were present, duly and unanimously adopted resolutions approving, including without limitation for purposes of Section 302A.673 of the MBCA, this Agreement, and the transactions contemplated hereby, including the Offer, the Merger, the Top-Up Option and the issuance of Shares of Common Stock upon the exercise thereof. The Company Board, at a meeting duly called and held prior to receipt the execution of this Agreement, and acting on the unanimous recommendation of the Requisite Stockholder Vote. The Special Committee, duly and unanimously: (i) determined that it is in the best interests of the Company and its shareholders, and declared it advisable, to enter into this Agreement with Parent and Purchaser, (ii) approved the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Merger transactions contemplated hereby, including the Offer, the Merger, the Top-Up Option and the issuance of Shares of Common Stock upon the exercise thereof and the other transactions contemplated hereby have been duly and validly authorized by the Company Board, subject, in the case of the Merger, to receipt of the Requisite Stockholder Vote. No other corporate proceedings on the part of the Company are necessary to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the provisions of the DGCL. Subject to Section 5.3(d), the Company Board, acting upon the recommendation of the Strategic Alternatives Committee, has unanimously, by resolutions adopted at a meeting duly called and held, (i) approved and declared advisable this Agreement and the transactions contemplated hereby, (ii) determined that the terms of this Agreement are fair to, and in the best interests of, the Company and its stockholders, and (iii) resolved to recommend that the Company’s stockholders vote in favor shareholders of adoption of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and adopt this Agreement (including the recommendation of the Special Committee, the “Company Board Recommendation”) and directed that the Agreement such matter be submitted to the holders for consideration of the Shares for their adoption of the plan of merger contained in this Agreement at a stockholders meeting duly called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock shareholders of the Company necessary for at the Company to adopt Shareholders Meeting. The execution, delivery and performance of this Agreement and for by the Company to consummate and the consummation by the Company of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company, except in the case of the Merger and which is subject to the other transactions contemplated herebyRequisite Company Vote.

Corporate Authorization; Enforceability. (a) The Company has taken all corporate action (including all action required of its Board of Directors and stockholders) necessary to authorize its execution and delivery of the requisite corporate power Documents, its performance of its obligations thereunder, and authority its consummation of the transactions contemplated thereby. Each Document has been executed and delivered by an officer of the Company in accordance with such authorization. Each Document constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms, subject to enter into applicable bankruptcy, reorganization, insolvency, moratorium, and similar laws affecting creditors' rights generally and to perform its obligations under this Agreement and to consummate general principles of equity. The Shares, when issued in compliance with the Merger and the other transactions contemplated by provisions of this Agreement, subjectwill be validly issued, fully paid and nonassessable, and in the case of the Mergerissuance of shares of Series E Preferred Stock, will have the rights, preferences and privileges described in the Certificate of Incorporation (as the same may be amended from time to receipt time); the Warrant Shares issuable upon exercise of the Requisite Stockholder Vote. The executionWarrant, delivery and performance by when issued in compliance with the Company provisions of this Agreement and the consummation by Certificate of Incorporation, will be validly issued, fully paid and nonassessable; the Company Common Stock issuable upon conversion of any of the Merger Shares and the other transactions contemplated hereby have been duly and validly authorized by the Company Board, subject, Warrant Shares when issued in the case of the Merger, to receipt of the Requisite Stockholder Vote. No other corporate proceedings on the part of the Company are necessary to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance compliance with the provisions of the DGCL. Subject to Section 5.3(d), the Company Board, acting upon the recommendation of the Strategic Alternatives Committee, has unanimously, by resolutions adopted at a meeting duly called and held, (i) approved and declared advisable this Agreement and the transactions contemplated herebyCertificate of Incorporation, will be validly issued, fully paid and nonassessable; and the Shares and the Warrant Shares (ii) determined that the terms including shares of this Agreement are fair to, and in the best interests of, the Company and its stockholders, and (iii) resolved to recommend that the Company’s stockholders vote in favor Common Stock issuable upon conversion of adoption of this Agreement (the “Company Board Recommendation”) and directed that the Agreement be submitted to the holders any of the Shares for their adoption and the Warrant Shares) will be free of any liens or encumbrances other than any liens or encumbrances created by the Investor; provided, however, that the Shares , the Warrant Shares and the Common Stock issuable upon conversion of any of the plan of merger contained in this Agreement at a stockholders meeting duly called Shares and held for such purposethe Warrant Shares (if applicable) are subject to the restrictions on transfer under "blue-sky", state and/or Federal securities laws and pursuant to the Stockholders Agreement. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock of the Company necessary for the Company to adopt this Agreement and for the Company to consummate the Merger Shares and the other transactions contemplated herebyWarrant Shares shall not be subject to any preemptive rights or rights of first refusal except as set forth herein or in the Stockholders Agreement.

Corporate Authorization; Enforceability. (a) The Company has the requisite corporate power and authority to enter into and to perform its obligations under this Agreement and to consummate the Merger and the other transactions contemplated by this Agreement, subject, in the case of the Merger, to receipt of the Requisite Stockholder Vote. The execution, delivery and performance by the Company Seller of this Agreement, and the Warrants, the Closing Escrow Agreement (as defined below), the Notes, the Investor Rights Agreement, and each of the other documents executed pursuant to and in connection with this Agreement (collectively, the “Related Documents”), and the consummation by the Company of the Merger and the other transactions contemplated hereby have been duly and validly authorized by the Company Boardthereby (including, subject, in the case of the Merger, to receipt of the Requisite Stockholder Vote. No other corporate proceedings on the part of the Company are necessary to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the provisions of the DGCL. Subject to Section 5.3(d), the Company Board, acting upon the recommendation of the Strategic Alternatives Committee, has unanimously, by resolutions adopted at a meeting duly called and heldbut not limited to, (i) approved the sale and declared advisable this Agreement delivery of the Notes and the transactions contemplated herebyWarrants, (ii) determined that the terms subsequent issuance of this Agreement are fair tothe New Securities upon conversion of the Notes, and in if applicable, (iii) the best interests ofsubsequent issuance of the Common Conversion Shares upon conversion of the New Securities or the Notes, the Company and its stockholdersas applicable, and (iiiiv) resolved the subsequent issuance of the Warrant Shares upon exercise of the Warrants) have been duly authorized, and no additional corporate or stockholder action is required pursuant to recommend the rules of any stock exchange, market or bulletin board on which the Common Stock is traded or otherwise for the approval of this Agreement, the Related Documents or the consummation of the transactions contemplated hereby or thereby; provided, however, that the Companyauthorization, designation and issuance of the New Securities, if applicable, would require approval of the Seller’s stockholders vote in favor Board of adoption Directors. The Warrant Shares have been duly reserved for issuance by the Seller. Upon the authorization and designation by the Seller of this the New Securities, if applicable, the Conversion Shares will be duly reserved for issuance by the Seller. This Agreement (and the “Company Board Recommendation”) and directed that the Agreement be submitted Related Documents have been or, to the holders extent contemplated hereby or by the Related Documents, will be duly executed and delivered and constitute the legal, valid and binding agreement of the Shares for Seller, enforceable against the Seller in accordance with their adoption terms, except as may be limited by bankruptcy, reorganization, insolvency, moratorium and similar laws of general application relating to or affecting the plan enforcement of merger contained rights of creditors, and except as enforceability of its obligations hereunder are subject to general principles of equity (regardless of whether such enforceability is considered in this Agreement a proceeding in equity or at a stockholders meeting duly called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock of the Company necessary for the Company to adopt this Agreement and for the Company to consummate the Merger and the other transactions contemplated herebylaw).

Corporate Authorization; Enforceability. (a) The Company has the requisite corporate power and authority to enter into and to perform its obligations under this Agreement and to consummate the Merger and the other transactions contemplated by this Agreement, subject, in the case of the Merger, to receipt of the Requisite Stockholder Vote. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Merger and the other transactions contemplated hereby have been duly and validly authorized by the Company Board, subject, in the case of the Merger, to receipt of the Requisite Stockholder Vote. No Except for the Requisite Stockholder Vote, no other corporate proceedings on the part of the Company are necessary to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the provisions of the DGCLhereby. Subject to Section 5.3(d5.3(e), the Company Board, acting upon the recommendation of the Strategic Alternatives Special Committee, has unanimously, by resolutions adopted at a meeting duly called and held, (i) approved and declared advisable this Agreement and the transactions contemplated hereby, (ii) determined that the terms of this Agreement are fair to, and in the best interests of, the Company and its stockholders, and (iii) resolved to recommend that the Company’s stockholders vote in favor of adoption of this Agreement (the “Company Board Recommendation”) and directed that the Agreement be submitted to the holders of the Shares for their adoption of the plan of merger contained in this Agreement at a stockholders meeting duly called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock of the Company necessary for the Company to adopt this Agreement and for the Company to consummate the Merger and the other transactions contemplated hereby.