Common use of Due Execution, Delivery and Performance of the Transaction Documents Clause in Contracts

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into the Transaction Documents and perform the transactions contemplated hereby. The Transaction Documents have been duly authorized, executed and delivered by the Company. The making and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated will not violate any provision of the organizational documents of the Company and will not result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company or any Subsidiary is a party or by which the Company or its properties, or any Subsidiary or such Subsidiary’s properties, may be bound or affected and in each case which would have a material adverse effect on the condition (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”) or, to the Company’s knowledge, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or any Subsidiary or any of their respective properties. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated therein, except for compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Securities. Upon their execution and delivery, and assuming the valid execution thereof by the respective Purchasers, the Transaction Documents will constitute valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in the Registration Rights Agreement may be legally unenforceable.

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into authorize, execute and deliver this Agreement, the Certificate of Designations and the Registration Rights Agreement Acknowledgement attached hereto as Exhibit B (all such agreements and documents are collectively referred to herein as the “Transaction Documents Documents”), perform its obligations hereunder and perform thereunder and consummate the transactions contemplated herebyhereby and thereby. The execution and delivery of the Transaction Documents Documents, the performance of the Company’s obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized, executed and delivered authorized by the Company. The making Except as set forth in Schedule 2.2, the execution and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated will not (i) violate any provision of the organizational documents of the Company and will not Company, (ii) result in the creation of any lien, pledge, hypothecation, charge, mortgage, security interest interest, encumbrance, restriction, adverse claim, interference or encumbrance right of third party of any nature upon any material assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under under, any material agreement, commitment, undertaking, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument of any nature to which the Company or any the Subsidiary is a party or by which the Company or its properties, or any the Subsidiary or such the Subsidiary’s properties, may be bound or affected and in each case which would have a material adverse effect on the condition affected, or (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”iii) or, to the Company’s knowledge, violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental or quasi-governmental body applicable to the Company or any the Subsidiary or any of their respective properties; provided it is understood that the Shares (i) shall not be entitled to cast a vote for the number of shares of Common Stock into which the Shares are convertible and (ii) shall not be convertible into shares of Common Stock until (A) the issuance of shares of Common Stock upon conversion of the Shares has been approved by the stockholders of the Company in accordance with NASDAQ Listing Rule 5635 and (B) the Company has complied with Rule 14c-2 of the Securities Exchange Act of 1934, as amended, in respect of such stockholder approval. No consent, approval, authorization authorization, order, filing with, or other order action by or in respect of any court, regulatory body, administrative agency or other governmental or quasi-governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated thereinthereby, other than such as have been made or obtained and except for compliance with the Blue Sky laws and laws, federal securities laws and NASDAQ rules applicable to the offering listing of the SecuritiesShares and the issuance of shares of Common Stock upon conversion of the Shares. Upon their execution and delivery, and assuming the valid execution thereof by the respective PurchasersPurchaser, the Transaction Documents will constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in the Registration Rights Agreement may be legally unenforceable).

Due Execution, Delivery and Performance of the Transaction Documents. The Except as contemplated by Section 6.1(e) and for the approval by the Company’s stockholders of the Certificate of Incorporation Amendments set out in Exhibit L, the Bylaw Amendments and the Rights Agreement, the Company has full legal right, corporate power and authority to enter into the Transaction Documents Documents, issue the Shares, the Warrant, the Warrant Shares, the Convertible Notes and the Note Shares and perform the transactions contemplated herebyby the Transaction Documents. The Each of the Transaction Documents have been will upon delivery be duly authorized, executed and delivered by the Company. The making Subject to the approval of the Company’s stockholders as contemplated by Section 6.1(e) hereof and the approval by the Company’s stockholders of the Certificate of Incorporation Amendments set out in Exhibit L, the Bylaw Amendments and the Rights Agreement, the making, issuing and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated will not (i) violate any provision of the organizational documents of the Company and will not in a manner that would reasonably be expected to have a Material Adverse Effect, (ii) result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under under, or give any person any rights of termination, amendment, acceleration or cancellation of, any agreement, commitment, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument (A) to which the Company or any Subsidiary is a party or by which the Company or its properties, or any Subsidiary or such Subsidiary’s properties, properties may be bound or affected and (B) which individually or in each case which the aggregate would have be reasonably likely to result in a material adverse effect on the condition (financial or otherwise), properties, business, prospects or results of operations liability of the Company in the aggregate (or have a “Material Adverse Effect”, or (iii) or, to the Company’s knowledge, violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or any Subsidiary or any of their respective propertiesits properties in a manner that would reasonably be expected to have a Material Adverse Effect. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery by the Company of the Transaction Documents or the consummation by the Company of the transactions contemplated thereinthereby, other than such as have been made or obtained and except for compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Initial Securities, the Note Shares and the Warrant Shares. Upon their execution and delivery, and assuming the valid execution thereof by the respective PurchasersPurchaser and the other parties thereto, the Transaction Documents will constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in the Registration Rights Agreement may be legally unenforceable).

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into this Agreement, the Indenture, and the Notes (together, the “Transaction Documents Documents”) and to perform the transactions contemplated herebyhereby and thereby. Each of the Company’s Subsidiaries has full legal right, organizational power and authority to enter into the Transaction Documents to which it is a party (including the Notation of Guarantee attached to the Indenture) and to perform the transactions contemplated thereby. The Transaction Documents have been duly authorized, executed and delivered by each of the CompanyCompany and the Subsidiaries party thereto. The making Transaction Documents constitute the legal, valid and binding agreements of each of the Company and Subsidiaries party thereto, enforceable against each of the Company and Subsidiaries party thereto in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws and judicial decisions of general application relating to or affecting the enforcement of creditors’ rights generally and the application of general equitable principles relating to the availability of remedies, and except as rights to indemnity or contribution may be limited by federal or state securities law or the public policy underlying such laws. The execution and performance of the Transaction Documents by each of the Company and Subsidiaries party thereto and the consummation of the transactions herein or therein contemplated will not violate any provision of the Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company or the organizational documents of the Company any Subsidiary and will not result in the creation of any lien, charge, security interest or encumbrance Liens upon any assets of the Company or any Subsidiary pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which any of the Company or any Subsidiary is a party or by which any of the Company or its properties, or any Subsidiary or such Subsidiary’s properties, their respective properties may be bound or affected and in each case which that would have a material adverse effect on the condition (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”) or, to the Company’s knowledge, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or any Subsidiary or any of their respective properties. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated therein, except for compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Securities. Upon their execution and delivery, and assuming the valid execution thereof by the respective Purchasers, the Transaction Documents will constitute valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may reasonably be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in the Registration Rights Agreement may be legally unenforceable.expected

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into authorize, execute and deliver this Agreement, the Certificate of Designations and the Registration Rights Agreement attached hereto as Exhibit B (all such agreements and documents are collectively referred to herein as the “Transaction Documents Documents”), perform its obligations hereunder and perform thereunder and consummate the transactions contemplated herebyhereby and thereby. The execution and delivery of the Transaction Documents Documents, the performance of the Company’s obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized, executed and delivered authorized by the Company. The making Except as set forth in Schedule 2.4, the execution and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated will not (i) violate any provision of the organizational documents of the Company and will not Company, (ii) result in the creation of any lien, pledge, hypothecation, charge, mortgage, security interest interest, encumbrance, restriction, adverse claim, interference or encumbrance right of third party of any nature upon any material assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under under, any material agreement, commitment, undertaking, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument of any nature to which the Company or any the Subsidiary is a party or by which the Company or its properties, or any the Subsidiary or such the Subsidiary’s properties, may be bound or affected and in each case which would have a material adverse effect on the condition affected, or (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”iii) or, to the Company’s knowledge, violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental or quasi-governmental body applicable to the Company or any the Subsidiary or any of their respective properties; provided it is understood that the Company must obtain stockholder approval of an amendment to its certificate of incorporation to authorize the issuance of additional shares of Common Stock in order to permit full conversion of the Preferred Stock as contemplated by the Certificate of Designations. No consent, approval, authorization authorization, order, filing with, or other order action by or in respect of any court, regulatory body, administrative agency or other governmental or quasi-governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated thereinthereby, other than such as have been made or obtained and except for compliance with the Blue Sky laws and laws, federal securities laws and NASDAQ rules applicable to the offering listing of the SecuritiesShares. Upon their execution and delivery, and assuming the valid execution thereof by the respective PurchasersPurchaser, the Transaction Documents will constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Company has taken all action necessary to exempt (i) the issuance and sale of the Shares, (ii) the issuance of the Common Shares upon conversion of the Preferred Stock, (iii) the other transactions contemplated by the Transaction Documents, and (iv) the Purchaser and its affiliates and associates (as such terms are defined in Section 203 of the General Corporation Law of the State of Delaware) and except any subsequent business combination (as the indemnification agreements such term is defined in Section 203 of the Delaware General Corporation Law) between the Company and the Purchaser and/or any such affiliate or associate of the Purchaser from the provisions of any anti-takeover, business combination or control share law or statute (including Section 203 of the General Corporation Law of the State of Delaware) binding on the Company or to which the Company or any of its assets and properties may be subject or any provision of the Company’s certificate of incorporation, bylaws or any stockholder rights agreement that is or could become applicable to the Purchaser or any such affiliate or associate of the Purchaser as a result of the transactions contemplated hereby. The Company has delivered to Purchaser an officer’s certificate certifying to copies of the resolutions duly adopted by the Board of Directors (pursuant to and in accordance with the Company’s certification of incorporation and bylaws) with respect to the matters described in the Registration Rights Agreement may be legally unenforceableforegoing sentence and that such resolutions have not been amended, superseded and/or rescinded and otherwise remain in full force and effect.

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into authorize, execute and deliver this Agreement and the Amended and Restated Note (all such agreements and documents are collectively referred to herein as the “Transaction Documents Documents”), perform its obligations hereunder and perform thereunder and consummate the transactions contemplated herebyhereby and thereby. The execution and delivery of the Transaction Documents Documents, the performance of the Company’s obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized, executed and delivered authorized by the Company. The making execution and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated will not (i) violate any provision of the organizational documents of the Company and will not Company, (ii) result in the creation of any lien, pledge, hypothecation, charge, mortgage, security interest interest, encumbrance, restriction, adverse claim, interference or encumbrance right of third party of any nature upon any material assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under under, any material agreement, commitment, undertaking, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument of any nature to which the Company or any the Subsidiary is a party or by which the Company or its properties, or any the Subsidiary or such the Subsidiary’s properties, may be bound or affected and in each case which would have a material adverse effect on the condition affected, or (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”iii) or, to the Company’s knowledge, violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental or quasi-governmental body applicable to the Company or any the Subsidiary or any of their respective properties. No consent, approval, authorization authorization, order, filing with, or other order action by or in respect of any court, regulatory body, administrative agency or other governmental or quasi-governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated thereinthereby, other than such as have been made or obtained and except for compliance with the Blue Sky laws and laws, federal securities laws and NASDAQ rules applicable to the offering issuance of the SecuritiesExchange Shares. Upon their execution and delivery, and assuming the valid execution thereof by the respective PurchasersAston, the Transaction Documents will constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in the Registration Rights Agreement may be legally unenforceable).

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into this Agreement, the First Warrant, the Second Warrant, the Registration Rights Agreement (as defined in Section 5.1(e) below) and the Xxx Technologies Lock-Up Agreement (as defined in Section 5.1(f) below) (all such agreements and documents are collectively referred to herein as the “Transaction Documents Documents”) and perform the transactions contemplated herebyby the Transaction Documents. The Transaction Documents have been duly authorized, executed and delivered by the Company. The Subject to the approval of the Company’s stockholders, the making and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated will not (i) violate any provision of the organizational documents of the Company and will not Company, (ii) result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company or any Subsidiary is a party or by which the Company or its properties, or any Subsidiary or such Subsidiary’s properties, may be bound or affected and in each case which would have a material adverse effect on the condition affected, or (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”iii) or, to the Company’s knowledge, violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or any Subsidiary or any of their respective properties, in the case of clause (ii) which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated thereinthereby, other than such as have been made or obtained and except for compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Securities. Upon their execution and delivery, and assuming the valid execution thereof by the respective PurchasersPurchaser and the other parties thereto, the Transaction Documents will constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). For purposes of this Agreement, the term “Material Adverse Effect” shall mean: (a) and except as a material adverse effect on the indemnification agreements financial condition, properties, business or results of operations of the Company and the Subsidiaries, taken as a whole, or (b) a material adverse effect on the ability of the Company to perform its material obligations under this Agreement; provided, however, that a Material Adverse Effect shall not include any event, change, effect, development, condition or occurrence arising out of or relating to (i) general economic or political conditions in the Registration Rights United States of America, (ii) conditions generally applicable to the industry in which the Company operates (except, in the case of clauses (i) and (ii) above, if the event, change, effect, development, condition or occurrence disproportionately impacts the business, assets or financial condition of the Company and the Subsidiaries, taken as a whole), and (iii) the public announcement of this Agreement may be legally unenforceableor the consummation of the transactions contemplated hereby. A reduction in market price of the Company’s Common Stock on the Nasdaq National Market shall not, in and of itself, constitute a Material Adverse Effect.

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into the Transaction Documents and perform the transactions contemplated herebythereby. The Each of the Transaction Documents have has been duly authorized, executed and delivered by the Company. The making execution, delivery and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated thereby do not and will not violate any provision of the organizational documents certificate of incorporation or bylaws of the Company or any of its Subsidiaries and will not result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company or any of its Subsidiaries pursuant to the terms or provisions of, or and will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under (a) any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company or any Subsidiary of its Subsidiaries is a party or by which the Company or any of its properties, Subsidiaries or any Subsidiary or such Subsidiary’s properties, of their respective properties may be bound or affected and in each case which would reasonably be expected to have a material adverse effect on the condition (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”, or (b) or, to the Company’s knowledge, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or any Subsidiary of its Subsidiaries or any of their respective propertiesproperties where such conflict, breach, violation or default would reasonably be expected to have a Material Adverse Effect. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated thereinthereby, except for compliance with the Blue Sky blue sky laws and federal securities laws applicable to the offering of the Securities. Upon their the execution and deliverydelivery by the Company of the Transaction Documents, and assuming the valid execution thereof of this Agreement by the respective PurchasersPurchaser, each Transaction Document to which the Transaction Documents Purchaser is a party will constitute a valid and binding obligations obligation of the Company, enforceable in accordance with their respective its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in the Registration Rights Agreement SECTION 7.3 hereof may be legally unenforceablelimited by federal or state securities laws or the public policy underlying such laws.

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into the Transaction Documents and perform the transactions contemplated herebythis Agreement. The Transaction Documents have Agreement has been duly authorized, executed and delivered by the Company. The making and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated will not (i) violate any provision of the organizational documents of the Company and will not Company, (ii) result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company or any Subsidiary is a party or by which the Company or its properties, or any Subsidiary or such Subsidiary’s 's properties, may be bound or affected and in each case which would have a material adverse effect on the condition affected, or (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”iii) or, to the Company’s knowledge, violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or any Subsidiary or any of their respective properties, in the case of clause (ii) which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of the Transaction Documents Agreement or the consummation of the transactions contemplated thereinthereby, other than such as have been made or obtained and except for compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Securities. Upon their its execution and delivery, and assuming the valid execution thereof by the respective PurchasersPurchaser and the other parties thereto, the Transaction Documents Agreement will constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). For purposes of this Agreement, the term "Material Adverse Effect" shall mean: (a) and except as a material adverse effect on the indemnification agreements financial condition, properties, business or results of operations of the Company and the Subsidiaries, taken as a whole, or (b) a material adverse effect on the ability of the Company to perform its material obligations under this Agreement; provided, however, that a Material Adverse Effect shall not include any event, change, effect, development, condition or occurrence arising out of or relating to (i) general economic or political conditions in the Registration Rights United States of America, (ii) conditions generally applicable to the industry in which the Company operates (except, in the case of clauses (i) and (ii) above, if the event, change, effect, development, condition or occurrence disproportionately impacts the business, assets or financial condition of the Company and the Subsidiaries, taken as a whole), and (iii) the public announcement of this Agreement may be legally unenforceableor the consummation of the transactions contemplated hereby. A reduction in market price of the Company's Common Stock on the Nasdaq National Market shall not, in and of itself, constitute a Material Adverse Effect.

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into authorize, execute and deliver this Agreement and the Exchange Note attached hereto as Exhibit A (collectively referred to herein as the “Transaction Documents Documents”), perform its obligations hereunder and perform thereunder and consummate the transactions contemplated herebyhereby and thereby. The execution and delivery of the Transaction Documents Documents, the performance of the Company’s obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized, executed and delivered authorized by the Company. The making execution and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated will not (i) violate any provision of the organizational documents of the Company and will not Company, (ii) result in the creation of any lien, pledge, hypothecation, charge, mortgage, security interest interest, encumbrance, restriction, adverse claim, interference or encumbrance right of third party of any nature upon any material assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under under, any material agreement, commitment, undertaking, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument of any nature to which the Company or any the Subsidiary is a party or by which the Company or its properties, or any the Subsidiary or such the Subsidiary’s properties, may be bound or affected and in each case which would have a material adverse effect on the condition affected, or (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”iii) or, to the Company’s knowledge, violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental or quasi-governmental body applicable to the Company or any the Subsidiary or any of their respective properties. No consent, approval, authorization authorization, order, filing with, or other order action by or in respect of any court, regulatory body, administrative agency or other governmental or quasi-governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated therein, except for compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Securitiesthereby. Upon their execution and delivery, and assuming the valid execution thereof by the respective PurchasersAston, the Transaction Documents will constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in the Registration Rights Agreement may be legally unenforceable).

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, all requisite corporate power and authority to enter into the each Transaction Documents Document and perform the transactions contemplated herebyhereby or thereby. The Each Transaction Documents have Document has been duly authorized, executed and delivered by the Company. The making execution, delivery and performance of the each Transaction Documents Document by the Company and the consummation of the transactions contemplated herein or therein contemplated will not violate any provision of the organizational documents of the Company and will not result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under under, any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company or any Subsidiary is a party or by which the Company or any of its properties, or any Subsidiary or such Subsidiary’s properties, properties may be bound or affected and in each case which would have a material adverse effect on the condition (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”) or, to the Company’s knowledge, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or any Subsidiary of its properties where such conflict, breach, violation or any of their respective propertiesdefault is reasonably likely to result in a material adverse effect. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated thereinby the Transaction Documents, except for compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Securities. Upon their the execution and deliverydelivery of (i) this Subscription Agreement by the Company, and assuming the valid execution thereof hereof by the respective PurchasersSubscriber, (ii) the New Warrants by the Company and (iii) the Financial Advisory Agreement and the Transfer Agreement by the applicable parties, each Transaction Documents Document will constitute a valid and binding obligations obligation of the Company, enforceable in accordance with their respective its terms, except as (x) enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as generally, (y) enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as (z) the indemnification agreements of the Company in the Registration Rights Agreement Section 7.3 hereof may be legally unenforceable.

Due Execution, Delivery and Performance of the Transaction Documents. The Company has full legal right, corporate power and authority to enter into authorize, execute and deliver this Agreement, the Series G Certificate of Designations, the Registration Rights Agreement Acknowledgement and Joinder attached hereto as Exhibit C and the Amended and Restated April 2014 Note (all such agreements and documents are collectively referred to herein as the “Transaction Documents Documents”), perform its obligations hereunder and perform thereunder and consummate the transactions contemplated herebyhereby and thereby. The execution and delivery of the Transaction Documents Documents, the performance of the Company’s obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized, executed and delivered authorized by the Company. The making Except as set forth in Schedule 4(d), the execution and performance of the Transaction Documents by the Company and the consummation of the transactions therein contemplated will not (i) violate any provision of the organizational documents of the Company and will not Company, (ii) result in the creation of any lien, pledge, hypothecation, charge, mortgage, security interest interest, encumbrance, restriction, adverse claim, interference or encumbrance right of third party of any nature upon any material assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under under, any material agreement, commitment, undertaking, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument of any nature to which the Company or any the Subsidiary is a party or by which the Company or its properties, or any the Subsidiary or such the Subsidiary’s properties, may be bound or affected and in each case which would have a material adverse effect on the condition affected, or (financial or otherwise), properties, business, prospects or results of operations of the Company in the aggregate (a “Material Adverse Effect”iii) or, to the Company’s knowledge, violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental or quasi-governmental body applicable to the Company or any the Subsidiary or any of their respective properties. No consent, approval, authorization authorization, order, filing with, or other order action by or in respect of any court, regulatory body, administrative agency or other governmental or quasi-governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated thereinthereby, other than such as have been made or obtained and except for compliance with the Blue Sky laws and laws, federal securities laws and NASDAQ rules applicable to the offering issuance of shares of Common Stock upon conversion of the SecuritiesExchange Shares. Upon their execution and delivery, and assuming the valid execution thereof by the respective PurchasersSeries F Holder and Aston, the Transaction Documents will constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in the Registration Rights Agreement may be legally unenforceable).