The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (including the issuance of the New Preferred) do not and will not (a) result in a violation of the Restated Certificate of Incorporation or Bylaws of the Company, (b) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its subsidiaries is a party, or (c) assuming the accuracy of the Holder’s representations and warranties set forth in Section  3 hereof, result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation, U.S. federal and state securities laws and regulations) applicable to the Company, or by which any property or asset of the Company is bound or affected, except, in the case of the foregoing clauses (b) and (c), for such conflicts, defaults, violations, terminations, amendments, accelerations, and cancellations as would not, individually or in the aggregate, have a material adverse effect on the Company’s business, operations, financial condition or properties.