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

Due Execution, Delivery and Performance of the Agreements. (a) The Company has full legal right, corporate power and authority to enter into the Agreements and perform the transactions contemplated hereby. The Agreements have been duly authorized, executed and delivered by the Company. The making and performance of the Agreements by the Company and the consummation of the transactions herein contemplated will not violate any provision of the organizational documents of the Company or the Subsidiary and will not result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company or the Subsidiary pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company or the Subsidiary is a party or by which the Company or the Subsidiary or their respective properties may be bound or affected and in each case which would have a material adverse effect on the condition (financial or otherwise), properties, business, prospects or results of operations of the Company and the Subsidiary taken as a whole (a "Material Adverse Effect") or, to the Company's knowledge, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or the Subsidiary or any of its respective properties. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement, except for (i) compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Shares; (ii) the approval by the stockholders of the Company of the increase in authorized Common Stock contemplated by the Certificate and of the issuance of the Shares to be issued at the Second Closing pursuant to the terms of this Agreement, (iii) the filing of the Certificate with the Secretary of State of the State of Delaware; and (iv) expiration of the HSR Waiting Period. Upon their execution and delivery, and assuming the valid execution thereof by the respective Purchasers, the Agreements will constitute valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in Section 7.4 hereof may be legally unenforceable. (b) The Board of Directors of the Company has taken all action necessary to (a) render inapplicable, as it relates to Warburg Pincus or any of its affiliates ("Warburg"), the provisions of Section 203 of the General Corporation Law of Delaware, and (b) to adopt an amendment to the Rights Agreement, dated as of February 1, 1999, between the Company and American Stock Transfer & Trust Company as Rights Agent, as amended, in the form of Exhibit A attached hereto (the "Rights Agreement Amendment").

Due Execution, Delivery and Performance of the Agreements. (a) The Company has full legal right, corporate power and authority to enter into the Agreements this Agreement and perform the transactions contemplated hereby. The Agreements have This Agreement has been duly authorized, executed and delivered by the Company. This Agreement constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and the application of equitable principles relating to the availability of remedies, and except as rights to indemnity or contribution, including but not limited to, indemnification provisions set forth in Section 9 of this Agreement may be limited by federal or state securities law or the public policy underlying such laws. The making execution and performance of the Agreements this Agreement by the Company and the consummation of the transactions herein contemplated will not violate any provision of the organizational documents certificate of incorporation or bylaws of the Company or the organizational documents of any Subsidiary and will not result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company or the any Subsidiary pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which any of the Company or the any Subsidiary is a party or by which any of the Company or the any Subsidiary or their respective properties may be bound or affected and in each case which that would have a material adverse effect on the condition (financial or otherwise), properties, business, prospects or results of operations of the Company and the Subsidiary taken as a whole (a "Material Adverse Effect") Effect or, to the Company's ’s knowledge, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental agency or body applicable to the Company or the any Subsidiary or any of its their respective properties. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental agency or body is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement, except for (i) compliance with the Blue Sky laws and federal securities laws applicable to the offering of the New Shares; (ii) the approval by the stockholders of the Company of the increase in authorized Common Stock contemplated by the Certificate and of the issuance of the Shares to be issued at the Second Closing pursuant to the terms of this Agreement, (iii) the filing of the Certificate with the Secretary of State of the State of Delaware; and (iv) expiration of the HSR Waiting Period. Upon their execution and delivery, and assuming the valid execution thereof by the respective Purchasers, the Agreements will constitute valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in Section 7.4 hereof may be legally unenforceable. (b) The Board of Directors of the Company has taken all action necessary to (a) render inapplicable, as it relates to Warburg Pincus or any of its affiliates ("Warburg"), the provisions of Section 203 of the General Corporation Law of Delaware, and (b) to adopt an amendment to the Rights Agreement, dated as of February 1, 1999, between the Company and American Stock Transfer & Trust Company as Rights Agent, as amended, in the form of Exhibit A attached hereto (the "Rights Agreement Amendment").

Due Execution, Delivery and Performance of the Agreements. (a) The Company has full legal right, corporate power and authority to enter into the Agreements and perform the transactions contemplated hereby. The Agreements have been duly authorized, executed and delivered by the Company. The making and performance of the Agreements by the Company and the consummation of the transactions herein contemplated will not violate any provision of the organizational documents of the Company or the Subsidiary any of its subsidiaries and will not result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company or the Subsidiary pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company or the Subsidiary any of its subsidiaries is a party or by which the Company or the Subsidiary any of its subsidiaries or any of their respective properties may be bound or affected and in each case which would have have, a material adverse effect on the condition (financial or otherwise), properties, business, prospects or results of operations of the Company and the Subsidiary its subsidiaries, taken as a whole (a "Material Adverse Effect") or, to the Company's knowledge, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or the Subsidiary any of its subsidiaries or any of its their respective properties. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement, except for (i) compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Shares; (ii) the approval by the stockholders of the Company of the increase in authorized Common Stock contemplated by the Certificate Shares and of the issuance of the Shares to be issued at the Second Closing pursuant to the terms of this Agreement, (iii) the filing of the Certificate with the Secretary of State of the State of Delaware; and (iv) expiration of the HSR Waiting Period. Upon their execution and delivery, and assuming the valid execution thereof by the respective Purchasers, the Agreements will constitute valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in Section 7.4 7.3 hereof may be legally unenforceable. (b) The Board of Directors of the Company has taken all action necessary to (a) render inapplicable, as it relates to Warburg Pincus or any of its affiliates ("Warburg"), the provisions of Section 203 of the General Corporation Law of Delaware, and (b) to adopt an amendment to the Rights Agreement, dated as of February 1, 1999, between the Company and American Stock Transfer & Trust Company as Rights Agent, as amended, in the form of Exhibit A attached hereto (the "Rights Agreement Amendment").

Due Execution, Delivery and Performance of the Agreements. (a) The Company has full legal right, corporate power and authority to enter into the Agreements this Agreement and perform the transactions contemplated hereby. The Agreements have This Agreement has been duly authorized, executed and delivered by the Company. The making and performance of the Agreements consummation by the Company and the consummation of the transactions herein contemplated will not violate any provision of the organizational documents of the Company. The execution, delivery and performance of this Agreement by the Company or and the Subsidiary and consummation by the Company of the transactions herein contemplated will not result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company or the Subsidiary pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any material agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company or the Subsidiary is a party or by which the Company or the Subsidiary or their respective any of its properties may be bound or affected and in each case which individually or in the aggregate would have a material adverse effect on the condition (financial or otherwise), properties, business, prospects prospects, or results of operations of the Company and the Subsidiary its subsidiaries, taken as a whole (a "Material Adverse Effect") or), to the Company's knowledge, or any statute or any authorization, judgmentjudgement, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to the Company or the Subsidiary or any of its respective properties. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement, except for (i) compliance with the Blue Sky laws and federal securities laws applicable to the offering of the Shares; (ii) the approval by the stockholders of the Company of the increase in authorized Common Stock contemplated by the Certificate and of the issuance of the Shares to be issued at the Second Closing pursuant to the terms of this Agreement, (iii) the filing of the Certificate with the Secretary of State of the State of Delaware; and (iv) expiration of the HSR Waiting Period. Upon their its execution and delivery, and assuming the valid execution thereof by the respective PurchasersPurchaser, the Agreements this Agreement will constitute a valid and binding obligations obligation of the Company, enforceable against the Company in accordance with their respective its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Company in Section 7.4 hereof may be legally unenforceable. (b) The Board of Directors of the Company has taken all action necessary to (a) render inapplicable, as it relates to Warburg Pincus or any of its affiliates ("Warburg"), the provisions of Section 203 of the General Corporation Law of Delaware, and (b) to adopt an amendment to the Rights Agreement, dated as of February 1, 1999, between the Company and American Stock Transfer & Trust Company as Rights Agent, as amended, in the form of Exhibit A attached hereto (the "Rights Agreement Amendment").