Common use of Authority; Non-Contravention Clause in Contracts

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, the consummation of the Merger and the other Transactions, have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the other parties hereto, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”). The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Merger) by the unanimous vote of the full Company Board, has (i) approved this Agreement and the Merger, (ii) determined that the Merger and the terms and conditions of this Agreement are fair to, advisable and in the best interests of the Company and the Company’s stockholders and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders for consideration and recommended that all of the Company’s stockholders adopt this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws.

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement Each Transaction Document has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Transaction Document by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Merger, (ii) determined that the Merger and Transactions upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with Applicable Law and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to the accuracy of the representation set forth in Section 3.4, the The affirmative vote of the Company’s stockholders holding holders of at least a majority of all the outstanding shares of Company Common Stock issued is the only vote of the holders of Company Capital Stock necessary to adopt this Agreement and outstanding on approve the record date set for Transactions under the determination DGCL, the Certificate of stockholders entitled to vote on such matter Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).

Authority; Non-Contravention. (a) The Company Parent has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Parent Shareholder Approval, to consummate the transactions contemplated hereby. Bid Sub and Merger Sub will have all requisite corporate power and authority to enter into this Agreement and the Merger Agreement, to consummate the transactions contemplated hereby and thereby (other Transactionsthan the Merger), and subject to the affirmative vote of Bid Sub as the sole quota holder of Merger Sub at the quota holder’s meeting of Merger Sub approving the Merger (the “Merger Sub Vote”), to consummate the Merger. The execution execution, delivery and delivery performance of this Agreement andand the Merger Agreement by each of Parent (with respect to this Agreement only), subject to obtaining the Company Stockholder Approval, Bid Sub and Merger Sub and the consummation of the transactions contemplated hereby and thereby to which Parent (with respect to this Agreement only), Bid Sub and Merger and the other Transactions, Sub are a party have been duly authorized by all necessary corporate action on Parent’s part, and will have been duly authorized by all necessary corporate action on each of Bid Sub’s and Merger Sub’s part, and no other corporate proceedings on its part are or will be (as applicable) necessary to authorize this Agreement or the part of Merger Agreement or to consummate the Companytransactions contemplated hereby or thereby, subject to obtaining the Merger Sub Vote and the Parent Shareholder Approval. This Agreement has been duly executed and delivered by Parent and (assuming the Company and, assuming due authorization, execution and delivery thereof by each of the other parties hereto, ) constitutes the a valid and binding obligation of the Companyit, enforceable against the Company it in accordance with its terms, subject only except to the effectextent enforcement is limited by bankruptcy, if anyinsolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equitable principles (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”whether considered in a proceeding at law or in equity). The Company Board, by resolutions duly adopted prior Subject to or on the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Merger) by the unanimous vote of the full Company Board, has (i) approved this Agreement and the Merger, (ii) determined that the Merger and the terms and conditions of this Agreement, the Merger Agreement are fair to, advisable will be duly executed and in the best interests of the Company delivered by Bid Sub and the Company’s stockholders Merger Sub and (iii) directed that assuming the adoption due authorization, execution and delivery by the other parties thereto), when so executed and delivered, will constitute a valid and binding obligation of this Agreement be submitted Bid Sub and Merger Sub, enforceable against Bid Sub and Merger Sub in accordance with its terms, except to the Company’s stockholders for consideration extent enforcement is limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and recommended that all similar Laws of the Company’s stockholders adopt this Agreement. Subject general applicability relating to the accuracy of the representation set forth or affecting creditors’ rights and to general equitable principles (whether considered in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter proceeding at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylawslaw or in equity).

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, the consummation of the Merger and the other Transactions, have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the other parties hereto, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”). The Company Board, by resolutions duly adopted on or prior to or on the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the MergerParent) by the unanimous vote of the full members of the Company BoardBoard participating in such vote, has (i) approved this Agreement and the Merger, (ii) determined that the Merger and the terms and conditions of this Agreement are fair to, advisable and in the best interests of the Company and the Company’s stockholders and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders for consideration and recommended that all of the Company’s stockholders adopt this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws.

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, to consummate the Merger and the other Transactionstransactions contemplated by this Agreement. The execution execution, delivery and delivery performance of this Agreement and, subject to obtaining by the Company Stockholder Approval, and the consummation by the Company of the Merger and the other Transactions, transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of the Company, subject to the Stockholder Approval. Assuming that Parent and its Affiliates are not “interested stockholders” for purposes of Section 203 of the DGCL, the only vote of the stockholders of the Company necessary to approve the Merger is the affirmative vote (in person or by proxy) of a majority of the votes entitled to be cast by the holders of the outstanding shares of Common Stock (the “Stockholder Approval”), and no vote on the part of the holders of the outstanding shares of Series A Convertible Preferred Stock is required in connection with this Agreement or the Merger. This Agreement has been duly and validly executed and delivered by the Company and, and (assuming due the valid authorization, execution and delivery thereof of this Agreement by each of the other parties heretoParent and Sub, as applicable) constitutes the a valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, subject only except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally or by general principles of equity. The Board of Directors of the effect, if any, of Company has (i) applicable bankruptcy determined that the Merger is fair to, and in the best interests of, the Company and its stockholders and declared advisable this Agreement and the Merger and the other similar laws affecting the rights of creditors generally transactions contemplated hereby and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”). The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation Board of Directors of the Merger) by the unanimous vote of the full Company Board, has (i) approved this Agreement and the MergerMerger and the other transactions contemplated hereby and has resolved, (ii) determined that subject to its right to change its recommendation in accordance with Section 6.3, to recommend adoption of this Agreement and the Merger and the terms and conditions other transactions contemplated hereby to the holders of this Agreement are fair to, advisable and in the best interests outstanding shares of Common Stock. The Board of Directors of the Company and the Company’s stockholders and (iii) has directed that the adoption of this Agreement be submitted to the Company’s stockholders for consideration and recommended that all holders of the Company’s stockholders adopt outstanding shares of Common Stock for their adoption in accordance with this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws.

Authority; Non-Contravention. (a) The Company Each of the Acquired Companies has all requisite corporate power and authority to enter into and perform its obligations under this Agreement and, subject to obtaining the Company Stockholder Approval, to consummate the Merger and the other Transaction Documents, and to complete the Transactions. The execution and delivery by each of the Acquired Companies of this Agreement andand the Transaction Documents to which it is a party, subject to obtaining and the Company Stockholder Approval, the consummation completion of the Merger and the other Transactions, have been duly authorized by all necessary corporate action on the part of the Companyactions. This Agreement Each Transaction Document has been (or will be at Closing) duly executed and delivered by each of the Company Acquired Companies that is contemplated to be a party thereto and, assuming the due authorization, execution and delivery thereof of such Transaction Document by each of the other parties heretothereto, constitutes the (or will constitute when executed and delivered) a valid and binding obligation of the Company, such Acquired Companies enforceable against the Company it in accordance with its terms, terms subject only to (i) the effect, if any, of (i) applicable bankruptcy bankruptcy, insolvency, reorganization, moratoruim and other similar laws Laws relating to or affecting the rights of creditors generally generally, and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other general equitable remedies principles (collectively, the “Enforceability LimitationsExceptions”). The Company Board of envisionTEC (the “Board”), by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company members of such Board, a copy of which has (i) been provided to Acquirer, has approved this Agreement (as it relates to the Mergers) and the Merger, (ii) Mergers and determined that this Agreement (as it relates to the Merger Mergers) and the Mergers, upon the terms and subject to the conditions of this Agreement set forth herein, are advisable, fair to, advisable to and in the best interests of envisionTEC. The shareholders of envisionTEC Germany has duly approved the Company sale and transfer of the Company’s stockholders and (iii) directed that the adoption of envisionTEC Germany Shares in accordance with this Agreement be submitted by shareholders’ resolution of Seller, a copy of which has been provided to the Company’s stockholders for consideration and recommended that all of the Company’s stockholders adopt this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylawsAcquirer,.

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into execute and deliver this Agreement andAgreement, subject to obtaining the Company Stockholder Approval, perform its covenants and obligations hereunder and to consummate the Merger Merger. Assuming the accuracy of the representations set forth in Section 5.8, the execution, delivery and the other Transactions. The execution and delivery performance of this Agreement and, subject to obtaining by the Company Stockholder Approval, and the consummation by the Company of the Merger and the other Transactions, have has been duly authorized by all necessary corporate action on the part of the CompanyCompany and, assuming the Stockholder Approval has been obtained, no other corporate proceeding on the part of the Company is necessary to adopt or authorize this Agreement or to consummate the Merger (other than the filing of the Certificate of Merger pursuant to Section 2.2). This Agreement has been duly executed and delivered by the Company and, and (assuming the due authorization, execution and delivery thereof of this Agreement by each of the other parties heretoParent and Sub, as applicable) constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, subject only to except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar Laws of general application, now or hereafter in effect, if anyaffecting or relating to enforcement of creditors’ rights generally or by general principles of equity, of whether considered in any Legal Proceeding at Law or in equity (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability LimitationsBankruptcy and Equity Exception”). The At a meeting duly called and held prior to the execution of this Agreement, the board of directors of the Company (the “Company Board”) duly and unanimously adopted and approved this Agreement, by resolutions duly adopted prior to or on declared this Agreement advisable, approved the Agreement Date (andexecution, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation delivery and performance of the Merger) by the unanimous vote of the full Company Board, has (i) approved this Agreement and the consummation by the Company of the Merger, (ii) determined that this Agreement and the Merger and the terms and conditions of this Agreement are fair to, advisable and in the best interests of of, the Company and the Company’s stockholders of the Company (the “Company Stockholders”), and resolved to recommend (iiisubject to its right to change its recommendation if required by its fiduciary duties in accordance with this Agreement) directed that the adoption of this Agreement be submitted to Company Stockholders consummate the Company’s stockholders for consideration and recommended that all Merger, which resolutions have not been subsequently withdrawn, amended or modified (but without limitation of the Company’s stockholders adopt this Agreement. Subject to the accuracy of the representation terms set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws7.3).

Authority; Non-Contravention. (a) The Company has all requisite the corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, the consummation of the Merger and the other Transactions, have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the other parties hereto, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”). The Company Board, by resolutions duly and unanimously adopted on or prior to or on the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Merger) by the unanimous vote of the full Company BoardParent), has (i) approved this Agreement and the Merger, (ii) determined that the Merger and the terms and conditions of this Agreement are fair to, advisable and in the best interests of the Company and the Company’s stockholders and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders for consideration and recommended that all of the Company’s stockholders adopt this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws.

Authority; Non-Contravention. (a) The Subject to obtaining Written Consents executed by each Consenting Stockholder (collectively, the “Company Stockholder Approval”), the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of this Agreement and the other Transaction Documents by each of the other parties heretohereto and thereto, constitutes this Agreement constitutes, and the other Transaction Documents upon execution and delivery by the Company will each constitute, the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Transactions, including the Merger, (ii) determined that the Merger and upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with the provisions of Delaware Law and (iii) directed that the adoption of this Agreement and approval of the principal terms of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to the accuracy of the representation set forth in Section 3.4, The Company Stockholder Approval includes the affirmative vote votes of the Company’s stockholders (1) Company Stockholders holding a majority of all the outstanding shares of Company Capital Stock (voting together as a single class on an as-converted to Company Common Stock basis), (2) Company Stockholders holding a majority of the outstanding shares of Company Common Stock, (3) Company Stockholders holding at least 70% of the outstanding shares of Company Preferred Stock issued and outstanding (voting together as a single class on the record date set for the determination an as-converted to Company Common Stock basis), (4) Company Stockholders holding at least a majority of stockholders entitled to vote on such matter at the Company Stockholder Meeting Series C Preferred Stock (such affirmative votevoting as a separate class) and (5) Company Stockholders holding at least a majority of the Company Series D Preferred Stock (voting as a separate class), the “Company Stockholder Approval”) is which are the only vote votes of the Company’s stockholders holders of Company Capital Stock necessary to adopt this Agreement and approve the Merger under Applicable Legal Requirements Delaware Law, California Law and the Company’s certificate Organizational Documents, each as in effect at the time of incorporation such adoption and bylawsapproval. Either (i) the average of the property factor, the payroll factor and the sales factor (as defined in Sections 25129, 25132 and 25134 of the California Revenue and Taxation Code) with respect to the Company is less than or equal to fifty percent (50%) during its latest full income year or (ii) one half (1/2) or less of its outstanding voting securities are held of record by persons having addresses in California appearing on the books of the Company on the record date for the latest meeting of holdings of Company Capital Stock held during its latest full income year (or, if no meeting was held during the latest full income year, on the last day of the latest full income year).

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject Subject to obtaining the Company Stockholder Approval, the execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the CompanyCompany and the Subsidiaries. This Agreement Each Transaction Document has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Transaction Document by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Merger, (ii) determined that the Merger and Transactions upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with Applicable Law and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to The affirmative votes of (i) the accuracy holders of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding at least a majority of all the outstanding shares of Company Class A Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Class A Common Stock basis) and (ii) the holders of a majority of the outstanding shares of Company Series B Stock and Company Series B-2 Stock (voting together as a single voting class on an as-converted to Company Class A Common Stock basis) are the record date set for only votes of the determination holders of stockholders entitled Company Capital Stock necessary to vote on such matter adopt this Agreement under the DGCL, the Certificate of Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement Each Transaction Document has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Transaction Document by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Transactions, including the Merger, (ii) determined that the Merger and upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with Applicable Law and (iii) directed that the adoption of this Agreement and approval of the principal terms of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this Agreement. Subject to Agreement and approve the accuracy principal terms of the representation set forth in Section 3.4, Merger. The affirmative votes of (i) the affirmative vote holders of the Company’s stockholders holding at least a majority of all the outstanding shares of Company Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis), (ii) the holders of a majority of the outstanding on shares of Company Common Stock (voting as a separate voting class) and (iii) the record date set for holders of 60% of the determination outstanding shares of stockholders entitled Company Preferred Stock (voting as a separate voting class) are the only votes of the holders of Company Capital Stock necessary to vote on such matter adopt this Agreement and approve the principal terms of the Merger under the DGCL, the CCC, the Certificate of Incorporation and the Bylaws, and any Contract with any of the Company Stockholders, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining approval of the Plan of Merger by the Company Stockholder ApprovalShareholders, to consummate the Merger and the other Transactionstransactions contemplated by this Agreement. The execution execution, delivery and delivery performance of this Agreement and, subject to obtaining by the Company Stockholder Approval, and the consummation by the Company of the Merger and the other Transactions, transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of the Company, subject to approval of the Plan of Merger by the Company Shareholders. The only vote of the Company Shareholders necessary to approve the Plan of Merger is the affirmative vote of the holders of a majority of the votes entitled to be cast by the holders of the outstanding shares of Common Stock. This Agreement has been duly and validly executed and delivered by the Company and, and (assuming due the valid authorization, execution and delivery thereof of this Agreement by each of the other parties heretoParent and Sub, as applicable) constitutes the a valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, subject only to except as the effectenforceability thereof may be limited by applicable bankruptcy, if anyinsolvency, of (i) applicable bankruptcy and reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the creditors’ rights generally or by general principles of creditors generally and equity (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”regardless of whether considered at law or in equity). The Company Board, by resolutions duly adopted prior to or on Board has unanimously approved the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation Plan of the Merger) by the unanimous vote of the full Company Board, has (i) approved Merger and this Agreement and resolved to recommend approval of the MergerPlan of Merger and this Agreement, if required, by the holders of shares of Common Stock (iisubject to its right to withdraw, modify or amend its recommendation solely as set forth in, and in accordance with the terms of, Section 7.3(d) determined that of this Agreement). At a meeting duly called and held prior to the execution of this Agreement, the Merger Option Agreement and the terms and conditions of this Agreement are fair toShareholder Agreement, advisable and in the best interests a duly authorized special committee of the Company Board consisting solely of “disinterested directors” (as defined in Section 302A.673 of the MBCA) of the Company who also satisfied the requirements of Section 302A.675, subdivision 2 of the MBCA duly and unanimously adopted resolutions approving the Plan of Merger, this Agreement, the Merger Option Agreement, the Shareholder Agreement and the transactions contemplated hereby and thereby for purposes of Sections 302A.673, 302A.671 and 302A.675 of the MBCA. In addition, the Company Board has approved any amendment, consent, waiver or release of any provision of any of its agreements with the shareholder party to the Shareholder Agreement, including Section 4 of the Registration Rights Agreement between the shareholder and the Company’s stockholders , in order to permit the execution, delivery and (iii) directed performance by that the adoption of this Agreement be submitted to the Company’s stockholders for consideration and recommended that all shareholder of the Company’s stockholders adopt this Shareholder Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws.

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of this Agreement by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company BoardBoard of Directors, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company BoardBoard of Directors, has (i) approved declared that this Agreement and the transactions contemplated by this Agreement in connection with the First Merger, (ii) determined that the Merger and upon the terms and subject to the conditions of this Agreement are fair toset forth herein, advisable and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with the provisions of Delaware Law and California to the extent applicable to the Company and (iii) directed that the adoption of this Agreement and approval of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to the accuracy The affirmative votes of the representation set forth in Section 3.4, the affirmative vote holders of the Company’s stockholders holding a majority of all the outstanding shares of Company Common Stock issued are the only votes of the holders of Company Capital Stock necessary to adopt this Agreement and outstanding on approve the record date set for Merger under Delaware Law, California Law, the determination Certificate of stockholders entitled to vote on such matter Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).

Authority; Non-Contravention. (ai) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement Each Company Transaction Document has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Company Transaction Document by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Transactions, including the Merger, (ii) determined that the Merger and upon the terms and subject to the conditions of this Agreement are fair toset forth herein, advisable and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with the provisions of Delaware Law and (iii) directed that the adoption of this Agreement and approval of the principal terms of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to The affirmative votes of (i) the accuracy holders of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all the outstanding shares of Company Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis), and (ii) the holders of at least sixty percent (60%) of the outstanding shares of Company Preferred Stock (voting together as a single class and on an as-converted basis) are the record date set for only votes of the determination holders of stockholders entitled Company Capital Stock necessary to vote on such matter adopt this Agreement and approve the Merger under Delaware Law, the Certificate of Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).

Authority; Non-Contravention. (a) The Company Seller has all requisite necessary corporate power and authority to enter into execute and deliver this Agreement andAgreement, subject to obtaining the Company Stockholder Approval, perform its obligations hereunder and to consummate the Merger and the other Contemplated Transactions. The execution execution, delivery and delivery performance of this Agreement and, subject to obtaining the Company Stockholder Approval, by Seller and the consummation by Seller and the Sale Entities of the Merger and the other Transactions, Contemplated Transactions have been duly authorized by all necessary corporate action, and no other corporate action on the part of Seller or any Sale Entity is necessary to authorize the Companyexecution, delivery and performance by Seller or any Sale Entity of this Agreement or the consummation of the Contemplated Transactions. (b) This Agreement has been duly executed and delivered by the Company Seller and, assuming due authorization, execution and delivery thereof hereof by each of the other parties hereto, constitutes the a legal, valid and binding obligation of the CompanySeller, enforceable against the Company Seller in accordance with its terms, subject only to the effect, if any, of except that such enforceability (i) applicable bankruptcy may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting or relating to the enforcement of creditors’ rights of creditors generally and (ii) Applicable Legal Requirements governing specific performanceis subject to general principles of equity, injunctive relief and other equitable remedies whether considered in a proceeding at Law or in equity (collectively, the “Enforceability LimitationsBankruptcy and Equity Exception”). (c) The Company Board, execution and delivery by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation Seller of the Merger) by the unanimous vote of the full Company Board, has (i) approved this Agreement and the MergerAncillary Agreements does not, and neither the consummation by Seller of the Contemplated Transactions nor compliance by Seller with any of the terms or provisions hereof will: (i) conflict with or violate any terms, conditions or provisions of the Organizational Documents of Seller or the Sale Entities; 22 4894-6761-6617 v.11 (ii) determined assuming that the Merger and the terms and conditions of this Agreement are fair to, advisable and in the best interests each of the Company consents, authorizations and approvals referred to in Section 3.4 are obtained (and any condition precedent to any such consent, authorization or approval has been satisfied) and each of the Company’s stockholders filings referred to in Section 3.4 are made and any applicable waiting periods referred to therein have expired, violate any Law applicable to Seller or the Sale Entities, other than any violation that would not reasonably be expected to be material to the Sale Entities, taken as a whole; or (iii) directed assuming that each of the adoption consents and notices specified in Schedule 5.2(b) is obtained or given, as applicable, result in any breach of, or constitute a default (with or without notice or lapse of this Agreement time, or both) under, or give rise to any right of termination, amendment, acceleration or cancellation of, or any right of first refusal under, any Material Contract or result in the creation of a Lien, upon any of the properties or assets of the Sale Entities, other than any breach, default right or Lien that would not reasonably be submitted expected to be material to the Company’s stockholders for consideration and recommended that all of the Company’s stockholders adopt this AgreementSale Entities, taken as a whole. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws.

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement Each Transaction Document has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Transaction Document by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability LimitationsExceptions”). The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Transactions, including the Merger, (ii) determined that the Merger and upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with Applicable Law and (iii) directed that the adoption of this Agreement and approval of the principal terms of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to The affirmative votes of (i) the accuracy holders of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding at least a majority of all the outstanding shares of Company Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis), (ii) the holders of a majority of the outstanding shares of Company Common Stock (voting as a separate voting class on an as-converted basis) and (iii) the record date set for holders of sixty-six and two-thirds percent of the determination outstanding shares of stockholders entitled Company Preferred Stock (voting as a separate voting class) are the only votes of the holders of Company Capital Stock necessary to vote on such matter adopt this Agreement and approve the principal terms of the Merger under the DGCL, the Certificate of Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement As of the Closing, each Transaction Document has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Transaction Document by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Transactions, including the Merger, (ii) determined that the Merger and upon the terms and subject to the conditions of this Agreement set forth herein, are advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with Applicable Law and (iii) directed that the adoption of this Agreement and approval of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to The affirmative votes of (i) the accuracy holders of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding at least a majority of all the outstanding shares of Company Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis), (ii) the holders of a majority of the outstanding on shares of Company Common Stock (voting as a separate voting class) and (iii) the record date set for holders of a majority of the determination outstanding shares of stockholders entitled Company Preferred Stock (voting as a separate voting class) are the only votes of the holders of Company Capital Stock necessary to vote on such matter adopt this Agreement and approve the Merger under the DGCL, the Certificate of Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, and to consummate the Merger and the other Transactionstransactions contemplated hereby. The execution and delivery of this Agreement and, subject to obtaining and the Company Stockholder Approval, Articles of Merger and the consummation of the Merger transactions contemplated hereby and the other Transactionsthereby, have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company BoardBoard of Directors of the Company, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company BoardBoard of Directors of the Company, has (i) approved and adopted this Agreement and the Articles of Merger and approved the Merger, (ii) determined that this Agreement and the Articles of Merger and the terms and conditions of the Merger and this Agreement and the Articles of Merger are fair to, advisable and in the best interests of the Company and the Company’s stockholders its shareholders, and (iii) directed that the adoption approval of this Agreement and the Articles of Merger be submitted to the Company’s stockholders Company shareholders for consideration and recommended that all of the Company’s stockholders shareholders of the Company adopt this Agreement. Subject to The affirmative votes of (i) the accuracy holders of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all the outstanding shares of Company Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis), and (ii) the holders of a majority of the outstanding on shares of Company Series B Stock and Company Series C Stock (voting together as a single voting class), are the record date set for only votes of the determination holders of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders Capital Stock necessary to adopt this Agreement under Applicable Legal Requirements and approve the Company’s certificate Merger (the "COMPANY SHAREHOLDER APPROVAL"). The execution, delivery and performance of incorporation and bylawsthe Company Shareholder Consent by the Company Shareholders listed on Exhibit A-1 is sufficient for the Company Shareholder Approval, the Company has obtained the Company Shareholder Consent from such Company Shareholders, subject to any required notices to non-consenting Company Shareholders.

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, to consummate the Merger and the other Transactionstransactions contemplated by this Agreement. The execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, the consummation of the Merger and the other Transactionstransactions contemplated by this Agreement, have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the other parties hereto, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted on or prior to or on the Agreement Date date hereof (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved this Agreement and the Merger, (ii) determined that the Merger and the terms and conditions of this Agreement are fair to, advisable and in the best interests of the Company and the Company’s stockholders and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders for consideration and recommended that all of the Company’s stockholders adopt this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws.

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject and each Transaction Document to obtaining the Company Stockholder Approval, which it is a party and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the CompanyCompany and the Company Subsidiaries. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of this Agreement by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law and equity governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved this Agreement and the Merger, (ii) determined that approved the Merger and the other Transactions and determined that this Agreement and the Transactions, including the Merger, upon the terms and subject to the conditions of this Agreement set forth herein, are advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with the provisions of Applicable Law and the Certificate of Incorporation and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders Company Stockholders for consideration and unanimously recommended that all of the Company’s stockholders Company Stockholders adopt this Agreement. Subject to The affirmative votes of (A) the accuracy Company Stockholders holding at least 75% of all of the representation set forth in Section 3.4, Company Common Stock and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis) and (B) the affirmative vote Company Stockholders holding at least 50% of the Company’s stockholders holding a majority Company Preferred Stock are the only votes of all the holders of shares of Company Common Capital Stock issued necessary to adopt this Agreement and outstanding on the record date set for principal terms of the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting Merger (such affirmative vote, the “Company Stockholder Approval”) is the only vote ). The execution of the Company’s stockholders necessary Written Consent by the Consenting Stockholders is sufficient to adopt this Agreement under effect the Company Stockholder Approval. The Company shall have obtained the Company Stockholder Approval in accordance with the Certificate of Incorporation (as amended by the Charter Amendment) and Applicable Legal Requirements and Law, each as in effect at the Company’s certificate time of incorporation and bylawssuch approval.

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement Each Transaction Document has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Transaction Document by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Merger, (ii) determined that the Merger and Transactions upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with Applicable Law and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the The Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) Approval is the only vote of the Company’s stockholders holders of Company Capital Stock necessary to adopt this Agreement and approve the Transactions, including the Conversion Election, under Applicable Legal Requirements the DGCL, the CCC, the Certificate of Incorporation and the Company’s certificate Bylaws, each as in effect at the time of incorporation such adoption and bylawsapproval.

Authority; Non-Contravention. (a) The Company Subject to the receipt of the Acquiror Stockholder Approval, each of Acquiror and Merger Sub has all requisite the corporate right, power and authority to enter into into, execute and deliver this Agreement and, subject to obtaining the Company Stockholder Approval, to consummate the Merger and the other Transactions. The Transaction Documents to which it is a party and to perform or satisfy, as the case may be, its obligations hereunder and thereunder, and the (i) execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, the consummation of the Merger and the other TransactionsTransaction Documents to which Acquiror or Merger Sub, as the case may be, is a party, (ii) performance or satisfaction, as the case may be, of Acquiror’s or Merger Sub’s obligations under this Agreement and the other Transaction Documents to which Acquiror or Merger Sub, as the case may be, is a party and (iii) consummation by Acquiror or Merger Sub, as the case may be, of the Transactions to which Acquiror or Merger Sub is a party, in each case, have been duly authorized by all necessary corporate action on actions of Acquiror or Merger Sub, as the part of the Companycase may be. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the other parties heretoTransaction Documents to which Acquiror or Merger Sub, as the case may be, is a party constitutes the legal, valid and binding obligation agreement of Acquiror or Merger Sub, as the Companycase may be, enforceable against Acquiror or Merger Sub, as the Company case may be, in accordance with its terms, subject only to the effect, if any, of (i) applicable bankruptcy laws of general application relating to bankruptcy, insolvency and other similar laws affecting the rights relief of creditors generally debtors, and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies remedies. The Board of Directors of Acquiror (collectively, the “Enforceability LimitationsAcquiror Board”). The Company Board) has adopted resolutions, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Merger) by the unanimous vote at a meeting duly called at which a quorum of the full Company Boarddirectors of Acquiror was present, has (i) approved approving the execution, delivery and performance of this Agreement and the MergerAgreement, (ii) determined determining that the Merger and the terms and conditions of entering into this Agreement are fair to, advisable and is in the best interests of the Company Acquiror and the Company’s stockholders and its stockholders, (iii) directed declaring this Agreement advisable and (iv) recommending that Acquiror’s stockholders vote in favor of approval of the issuance of Acquiror Series C Preferred Stock and Acquiror Common Stock constituting the Merger Consideration (the “Share Issuance”) and directing that the adoption of this Agreement Share Issuance be submitted to the CompanyAcquiror’s stockholders for consideration and recommended that all approval at a duly held meeting of such shareholders for such purpose (the “Acquiror Stockholders Meeting”). As of the Company’s stockholders adopt date of this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylawsresolutions have not been amended or withdrawn.

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining and the other Company Transaction Documents by the Company Stockholder Approval, and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement Each Company Transaction Document has been been, or prior to the Closing Date will be, duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Company Transaction Document by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Transactions, including the Merger, (ii) determined that the Merger and upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with Applicable Law and (iii) directed that the adoption of this Agreement and approval of the principal terms of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to The affirmative votes of (i) the accuracy holders of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding at least a majority of all the outstanding shares of Company Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis), (ii) the holders of a majority of the outstanding on shares of Company Common Stock (voting as a separate voting class), (iii) the record date set for holders of at least 57% of the determination outstanding shares of stockholders entitled Company Preferred Stock (voting as a separate voting class), and (iv) the holders of a majority of the outstanding shares of Company Series D Stock are the only votes of the holders of Company Capital Stock necessary to vote on such matter adopt this Agreement and approve the principal terms of the Merger under the DGCL, the CCC, the Certificate of Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of this Agreement by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Transactions, including the Merger, (ii) determined that the Merger and upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with the provisions of Delaware Law and (iii) directed that the adoption of this Agreement and approval of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to The affirmative votes of (i) the accuracy holders of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all the outstanding shares of Company Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis), (ii) the holders of a majority of the outstanding on shares of Company Common Stock (voting as a separate voting class) and (iii) the record date set for holders of a majority of the determination outstanding shares of stockholders entitled Company Preferred Stock (voting as a separate voting class) are the only votes of the holders of Company Capital Stock necessary to vote on such matter adopt this Agreement and approve the Merger under Delaware Law, California Law, the Certificate of Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval and the Charter Amendment Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject and the other Company Transaction Documents and to consummate the Transactions. Subject to obtaining the Company Stockholder Approvalaffirmative vote of the sole stockholder of Merger Sub and Acquirer necessary to adopt this Agreement and approve the principal terms of the Mergers under Delaware Law, to consummate the Merger California Law and the other Transactions. The certificates of incorporation and bylaws of Merger Sub and Acquirer, which will be obtained prior to the Closing, the execution and delivery of this Agreement and, subject to obtaining and the Company Stockholder Approval, other Transaction Documents and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement and each other Company Transaction Document has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of this Agreement and the other Company Transaction Documents by each of the other parties heretohereto and thereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company BoardBoard of Directors, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Boardmembers of the Board of Directors, has (iA) approved declared that this Agreement Agreement, the amended and restated certificate of incorporation required for the Charter Amendment and the MergerTransactions, (ii) determined that including the Merger and Mergers, upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (B) approved this Agreement, the Charter Amendment and the Mergers in accordance with the provisions of Delaware Law and California Law, (iiiC) directed that the adoption of this Agreement Agreement, the Charter Amendment and approval of the principal terms of the Mergers be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company Stockholders adopt this Agreement and approve the principal terms of the Mergers, and (D) determined the fair market value of each class and series of Company Capital Stock for purposes of Chapter 13 of the California Law. The affirmative votes of (1) the holders of a majority of the outstanding shares of Company Capital Stock (measured by voting power rather than number of shares, and voting together as a single voting class and, in the case of Company Preferred Stock, on an as-converted-to-Class-A-Company’s stockholders -Common-Stock or –Class-B-Company-Common-Stock basis, as applicable), (2) the holders of a majority of the outstanding shares of Class A Company Common Stock (voting as a separate voting class), (3) the holders of a majority of the outstanding shares of Class B Company Common Stock (voting as a separate voting class) and (4) the holders of a majority of the outstanding shares of Company Preferred Stock (measured by voting power rather than number of shares and voting as a separate voting class on an as-converted-to-Class-A-Company-Common-Stock or –Class-B-Company-Common-Stock basis, as applicable), are the only votes of the holders of Company Capital Stock necessary to adopt this Agreement. Subject to , approve the accuracy principal terms of the representation set forth in Section 3.4Mergers under Delaware Law, California Law, the affirmative vote Certificate of Incorporation and the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”). The written consent of (x) the holders of a majority of the outstanding shares of Company Capital Stock (measured by voting power rather than number of shares, and voting together as a single voting class and, in the case of Company Preferred Stock, on an as-converted-to-Class-A-Company-Common-Stock or –Class-B-Company-Common-Stock basis, as applicable), and (y) the holders of a majority of the outstanding shares of each series of Company Preferred Stock, in each case in favor of the Charter Amendment, is the only vote consent needed to effect the Charter Amendment under Delaware Law, California Law, the Certificate of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements Incorporation and the Company’s certificate Bylaws, each as in effect at the time of incorporation and bylawssuch written consent (collectively, the “Charter Amendment Approval”).

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject and each Transaction Document to obtaining the Company Stockholder Approval, which it is a party and to consummate the Merger and the other Transactions. The execution and delivery of this Agreement and, subject to obtaining the Company Stockholder Approval, and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the CompanyCompany and the Company Subsidiaries. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of this Agreement by each of the other parties hereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law and equity governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved this Agreement and the Merger, (ii) determined that approved the Merger and the other Transactions and determined that this Agreement and the Transactions, including the Merger, upon the terms and subject to the conditions of this Agreement set forth herein, are advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with the provisions of Applicable Law and the Certificate of Incorporation and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders Company Stockholders for consideration and unanimously recommended that all of the Company’s stockholders Company Stockholders adopt this Agreement. Subject to The affirmative votes of (A) the accuracy Company Stockholders holding at least fifty-five percent (55%) of the representation set forth in Section 3.4outstanding shares of Company Preferred Stock (voting together as a single voting class on an as-converted basis), the affirmative vote of the Company’s stockholders holding and (B) a majority of all the outstanding shares of Company Preferred Stock and Company Common Stock issued are the only votes of the holders of shares of Company Capital Stock necessary to adopt this Agreement and outstanding on the record date set for principal terms of the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting Merger (such affirmative vote, the “Company Stockholder Approval”) is the only vote ). The execution of the Company’s stockholders necessary Written Consent by the Consenting Stockholders is sufficient to adopt this Agreement under effect the Company Stockholder Approval. The Company shall have obtained the Company Stockholder Approval in accordance with the Certificate of Incorporation and Applicable Legal Requirements and Law, each as in effect at the Company’s certificate time of incorporation and bylawssuch approval.

Authority; Non-Contravention. (a) 3.3.1 The Company has all requisite corporate power and authority to enter into this Agreement andand the other Transaction Documents to which it is or will be a party, subject to obtaining the Company Stockholder Approval, perform its obligations hereunder and thereunder and to consummate the Merger transactions contemplated hereby and the other Transactionsthereby. The execution and delivery of this Agreement and, subject to obtaining and the Company Stockholder Approval, other Transaction Documents and the consummation of the Merger transactions contemplated hereby and the other Transactions, thereby have been duly authorized by all necessary corporate action on the part of the Company, subject only to obtaining the Required Shareholder Vote for the approval and adoption of this Agreement and the approval of the Merger, and the filing of the Merger Documents pursuant to California Law. The Board of Directors of the Company has approved this Agreement and declared the advisability of this Agreement and the Merger and recommended that the shareholders of the Company adopt this Agreement and approve the Merger. The Required Shareholder Vote is sufficient for the Company’s Shareholders to approve this Agreement and the Merger, and no other vote of the Company’s Shareholders is required in connection with the consummation of the transactions contemplated hereby. This Agreement and each of the other Transaction Documents to which the Company is or will be a party has been been, or upon execution and delivery thereof will be, duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by each of this Agreement and the other parties heretoTransaction Documents to which the Company is or will be a party by the other Parties, constitutes constitute, or upon execution and delivery will constitute, the valid and binding obligation of the Company, enforceable against the Company in accordance with its their respective terms, subject only to the effectexcept as such enforceability may be limited by bankruptcy, if anyinsolvency, of (i) applicable bankruptcy and moratorium or other similar laws affecting or relating to the rights of creditors generally and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”). The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded general principles of equity regardless of whether asserted in a manner adverse to Parent proceeding in equity or that would materially impair or delay the consummation of the Merger) by the unanimous vote of the full Company Board, has (i) approved this Agreement and the Merger, (ii) determined that the Merger and the terms and conditions of this Agreement are fair to, advisable and in the best interests of the Company and the Company’s stockholders and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders for consideration and recommended that all of the Company’s stockholders adopt this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylawslaw.

Authority; Non-Contravention. The Board of Directors of the Company has approved the Merger and this Agreement and declared the Merger and this Agreement to be in the best interests of the stockholders of the Company. Certain officers, directors and significant stockholders of the Company selected by EarthLink have executed an agreement to vote in favor of the Merger and vote against alternative proposals, which agreement is attached hereto as EXHIBIT D (a) the "AGREEMENT TO VOTE STOCK"). The Company has all the requisite corporate power and authority to enter into this Agreement and, subject to obtaining the Company Stockholder Approval, requisite approval of the Merger and this Agreement by the Company's stockholders as required by the DGCL ("COMPANY STOCKHOLDER APPROVAL") to consummate the Merger and the other Transactionstransactions contemplated hereby. The execution and delivery of this Agreement and, subject to obtaining by the Company Stockholder Approval, and the consummation by the Company of the Merger and the other Transactions, transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company, subject to Company Stockholder Approval. This Agreement has been duly and validly executed and delivered by the Company and, assuming due authorization, execution authorization and delivery thereof by each of the other parties heretoEarthLink and Combination Company, constitutes the a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that and as (i) such enforcement may be subject only to bankruptcy, insolvency, reorganization, moratorium or other similar laws or judicial decisions now or hereafter in effect relating to creditors' rights generally and the application of general principles of equity, (ii) the remedy of specific performance and injunctive relief may be subject to equitable defenses and to the effectdiscretion of the court before which any proceeding therefor may be brought and (iii) the enforceability of any indemnification provision contained herein may be limited by applicable federal or state securities laws. The execution, if anydelivery and performance of this Agreement by the Company do not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or "put" right with respect to any obligation or loss of a material benefit under, or result in the creation of any Lien, upon any of the properties or assets of the Company or any of its Subsidiaries, individually or collectively (a "DEFAULT") under, any provision of (i) applicable bankruptcy the Certificate of Incorporation and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”). The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation Bylaws of the Merger) by the unanimous vote Company or any provision of the full Company Board, has (i) approved this Agreement and the Mergercomparable organizational documents of its Subsidiaries, (ii) determined that any loan or credit agreement, note, bond, mortgage, indenture, lease, or other agreement, instrument, permit, concession, franchise or license to which the Merger Company or any of its Subsidiaries is a party or by which it or they or any of their respective properties or assets is bound (individually, a "CONTRACTUAL DOCUMENT" and collectively, the terms and conditions of this Agreement are fair to"CONTRACTUAL DOCUMENTS"), advisable and except any such Default or Defaults that, individually or in the best interests aggregate under one such Contractual Document or several such Contractual Documents, would not have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole, or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule or regulation or arbitration award applicable to the Company or any of its Subsidiaries or their respective properties or assets, except any such Default or Defaults that, individually or in the aggregate, would not have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole. SECTION 3.1(d) of the Company and Disclosure Schedule sets forth, to the Company’s stockholders 's Knowledge, the Company's Defaults under the provisions described in (i), (ii), and (iii) directed that immediately above. No consent, approval, order or authorization of, or registration, declaration or filing with ("CONSENT"), any court, administrative agency or commission or other governmental authority or agency, domestic or foreign, including local authorities (a "GOVERNMENTAL ENTITY") or other Person, is required by or with respect to the adoption Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement be submitted to by the Company’s stockholders for consideration and recommended that all Company or the consummation by the Company of the Company’s stockholders adopt this Agreement. Subject to transactions contemplated hereby, except where lack of such Consents would not be material, and except for (i) the accuracy filing by the Company of a pre-merger notification and report form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT") and the expiration or termination of the representation set forth in Section 3.4waiting period thereunder, (ii) the affirmative vote filing with the Securities Exchange Commission ("SEC") of the Company’s stockholders holding (A) a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled proxy statement/ prospectus relating to vote on such matter at the Company Stockholder Meeting (such affirmative voteproxy statement/ prospectus as amended or supplemented from time to time, the “"PROXY STATEMENT") and (B) the Registration Statement (as defined in SECTION 5.1(b)) and (C) such reports under SECTION 13(a) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), as may be required in connection with this Agreement and the transactions contemplated hereby, (iii) Company Stockholder Approval”, (iv) is the only vote filing of the Company’s stockholders necessary Certificate of Merger with and approval by the Delaware Secretary of State with respect to adopt this Agreement under Applicable Legal Requirements the Merger as provided in the DGCL and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business, (v) applicable requirements, if any, of the National Association of Securities Dealers, Inc. (the "NASD") and the Company’s certificate Nasdaq National Market ("NASDAQ"), (vi) applicable requirements, if any, of incorporation and bylawsthe consents, approvals, authorizations or permits described in SECTION 3.1(d) of the Company Disclosure Schedule.

Authority; Non-Contravention. (a) The Board of Directors of the Company has approved the Merger and this Agreement, by unanimous vote of the directors, and declared the Merger and this Agreement to be in the best interests of the stockholders of the Company. The directors of the Company have advised the Company and TMW that they intend to vote or cause to be voted all of the shares of the Company Common Stock for which they have voting power in favor of approval of the Merger and this Agreement. The Company has all the requisite corporate power and authority to enter into this Agreement and, subject to obtaining approval of the Merger and this Agreement by the holders of a majority of the outstanding Company Shares as of the record date for the Company Stockholders Meeting ("Company Stockholder Approval"), to consummate the Merger transactions contemplated hereby and to take such actions, if any, as shall have been taken with respect to the other Transactionsmatters referred to in Section 3.1(h). The execution and delivery of this Agreement and, subject to obtaining by the Company Stockholder Approval, and the consummation by the Company of the Merger and the other Transactions, transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company, subject to Company Stockholder Approval. This Agreement has been duly and validly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the other parties hereto, constitutes the a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject only to bankruptcy, insolvency, reorganization, moratorium or other similar laws or judicial decisions now or hereafter in effect relating to creditors' rights generally, (ii) the remedy of specific performance and injunctive relief may be subject to equitable defenses and to the effectdiscretion of the court before which any proceeding therefor may be brought and (iii) the enforceability of any indemnification provision contained herein may be limited by applicable federal or state securities laws. The execution and delivery of this Agreement by the Company do not, if anyand the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or "put" right with respect to any obligation or to loss of a material benefit under, or result in the creation of any Lien, upon any of the properties or assets of the Company or any of its subsidiaries under, any provision of (i) applicable bankruptcy the Amended and other similar laws affecting Restated Articles of Incorporation or Amended and Restated Bylaws of the rights Company or any provision of creditors generally and the comparable organizational documents of its subsidiaries, (ii) Applicable Legal Requirements governing specific performanceany loan or credit agreement, injunctive relief note, bond, mortgage, indenture, lease, or other agreement, instrument, permit, concession, franchise or license applicable to the Company or any of its subsidiaries or their respective properties or assets or (iii) subject to the governmental filings and other equitable remedies matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule or regulation or arbitration award applicable to the Company or any of its subsidiaries or their respective properties or assets, other than, in the case of clauses (collectivelyii) and (iii), any such conflicts, violations, defaults, rights or Liens that individually or in the “Enforceability Limitations”). The Company Board, by resolutions duly adopted prior to or aggregate would not have a Material Adverse Effect on the Agreement Date (and, subject to Section 5.3, Company and its subsidiaries taken as a whole and would not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair the ability of the Company to perform its obligations hereunder or delay prevent the consummation of any of the Mergertransactions contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or agency, domestic or foreign, including local authorities (a "Governmental Entity") or other Person, is required by or with respect to the Company or any of its subsidiaries in connection with the execution and delivery of this Agreement by the unanimous vote Company or the consummation by the Company of the full Company Boardtransactions contemplated hereby, has except for (i) approved the filing by the Company of a pre-merger notification and report form under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act") and the expiration or termination of the waiting period thereunder, (ii) the filing with the SEC of (A) a proxy statement relating to the Company Stockholder Approval (such proxy statement as amended or supplemented from time to time, the "Proxy Statement") and (B) the Registration Statement (as defined in Section 5.1(b)) and (C) such reports under Section 13(a) of Exchange Act, as may be required in connection with this Agreement and the Mergertransactions contemplated hereby, (iiiii) determined Company Stockholder Approval and (iv) the filing of the Certificate of Merger with and approval by the Georgia Secretary of State with respect to the Merger as provided in the GBCC and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business and such other consents, approvals, orders, authorizations, registrations, declarations and filings the failure of which to be obtained or made would not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole. Assuming that the Merger and TMW Common Stock is listed on a "national securities exchange" within the terms and conditions meaning of this Agreement are fair toSection 14-2-1302 of the GBCC, advisable and in the best interests shareholders of the Company and the Company’s stockholders and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders for consideration and recommended that all of the Company’s stockholders adopt this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders are not entitled to vote on such matter at dissenter's rights in connection with the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylawsMerger.

Authority; Non-Contravention. (a) The Company has all requisite corporate power and authority to enter into and deliver this Agreement and the other Company Transaction Documents and, subject to obtaining the Company Stockholder ApprovalApproval set forth in the Written Consent, to consummate the Merger and the other Transactions. The execution execution, delivery and delivery performance of this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and the consummation of the Merger and the other Transactions, Transactions have been duly authorized by all necessary corporate action on the part of the CompanyCompany (other than, in the case of the consummation of the Merger, obtaining the Company Stockholder Approval set forth in the Written Consent and the filing and recordation of appropriate documents as required by the DGCL). This Agreement and each Company Transaction Document has been been, or if applicable, as of the Closing will be, duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Transaction Document by each of the other parties heretothereto, constitutes the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Transactions, including the Merger, (ii) determined that the Merger and upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement and the Transactions in accordance with Applicable Law and (iii) directed that the adoption of this Agreement and approval of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to The affirmative votes of (1) the accuracy holders of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding at least a majority of all the outstanding shares of Company Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis), (2) the holders of at least a majority of the outstanding shares of the Company Preferred Stock (voting together as a single class and not as separate series, on an as-converted to Company Common Stock basis) and (3) the record date set for holders of at least a majority of the determination outstanding shares of stockholders entitled the Company Common Stock (voting together as a single class) are the only votes of the holders of Company Capital Stock necessary to vote on such matter adopt this Agreement and approve the Merger under Applicable Law, the Certificate of Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is ). The Written Consent, when executed and delivered, will satisfy the only vote Company Stockholder Approval. Prior to their execution of the Company’s stockholders necessary to adopt this Agreement under Written Consent, each signatory thereto shall have received from the Company all information required by Applicable Legal Requirements and the Company’s certificate of incorporation and bylawsLaw.

Authority; Non-Contravention. (a) The Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and, subject to obtaining and the other Company Stockholder Approval, Transaction Documents and to consummate the Merger and the other Transactions. The execution and delivery by the Company of this Agreement and, subject to obtaining the Company Stockholder Approval, the consummation of the Merger and the other Transactions, Company Transaction Documents and the consummation by the Company of the Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement Each Company Transaction Document has been or will be duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof of such Transaction Document by each of the other parties heretohereto and thereto, constitutes or will constitute the valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, terms subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws Applicable Law affecting the rights of creditors generally and (ii) Applicable Legal Requirements rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”)remedies. The Company Board, by resolutions duly adopted prior to or on the Agreement Date (and, subject to Section 5.3, and not thereafter modified or rescinded in a manner adverse to Parent or that would materially impair or delay the consummation of the Mergerrescinded) by the unanimous vote of the full Company Board, has (i) approved declared that this Agreement and the Merger, (ii) determined that the Merger and Transactions upon the terms and subject to the conditions of this Agreement are set forth herein, advisable, fair to, advisable to and in the best interests of the Company and the Company’s stockholders Company Stockholders, (ii) approved this Agreement in accordance with Applicable Law and (iii) directed that the adoption of this Agreement and approval of the principal terms of the Merger be submitted to the Company’s stockholders Company Stockholders for consideration and recommended that all of the Company’s stockholders Company Stockholders adopt this AgreementAgreement and approve the Merger. Subject to The affirmative votes of (A) the accuracy holders of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all the outstanding shares of Company Common Stock issued and Company Preferred Stock (voting together as a single voting class on an as-converted to Company Common Stock basis), and (B) the holders of a majority of the outstanding on shares of Company Preferred Stock (voting as a separate voting class) are the record date set for only votes of the determination holders of stockholders entitled Company Capital Stock necessary to vote on such matter adopt this Agreement and approve the principal terms of the Merger under the DGCL, the CCC, the Certificate of Incorporation and the Bylaws, each as in effect at the Company Stockholder Meeting time of such adoption and approval (such affirmative votecollectively, the “Company Stockholder Approval”) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws).