Common use of Capitalization and Voting Rights Clause in Contracts

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The capitalization of the Company is as set forth on Schedule 3.1(w), which Schedule 3.1(w) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents on Schedule 3.1(w) as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth on Schedule 3.1(w), no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Commission transactions contemplated by the Transaction Documents, this Agreement and the Registration Rights Agreement. Except as set forth on Schedule 3.1(w), there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documentson Schedule 3.1(w), no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission Documentson Schedule 3.1(w), the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission Documentson Schedule 3.1(w), the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company, when any such securities of the Company issued prior to the Closing Date were issued, complied in all material respects with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effectthereto. Except as set forth in the Commission Documentson Schedule 3.1(w), there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Note, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights AgreementSEC Reports, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission DocumentsSEC Reports, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission DocumentsSEC Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission DocumentsSEC Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsSEC Reports, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Documents.

Capitalization and Voting Rights. The capitalization of the Company is as set forth on Schedule 3.1(w), which Schedule 3.1(w) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents on Schedule 3.1(w) as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth on Schedule 3.1(w), no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Commission transactions contemplated by the Transaction Documents, this Agreement and the Registration Rights Agreement. Except as set forth on Schedule 3.1(w), there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documentson Schedule 3.1(w), no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission Documentson Schedule 3.1(w), the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission Documentson Schedule 3.1(w), the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would reasonably be expected to have a Material Adverse Effect. Except as set forth in the Commission Documentson Schedule 3.1(w), there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The authorized capital stock capitalization of the Company and the shares thereof issued and outstanding were is as set forth in on Schedule 3.5, which Schedule 3.5 shall also include the Commission Documents as number of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issuedowned beneficially, and are fully paid and nonassessableof record, by Affiliates of the Company as of the date hereof. Except as set forth in the Commission Documentson Schedule 3.5, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of has not issued any securities capital stock since its most recently filed periodic report under the Securities Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as set forth on Schedule 3.5, no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Commission transactions contemplated by the Transaction Documents. Except as set forth on Schedule 3.5, no shares and except as a result of Common Stock are entitled to preemptive rights the purchase and sale of the Securities, there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities securities, rights or rights obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. Except as set forth on Schedule 3.5, the issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company other than those are duly authorized, validly issued, fully paid and nonassessable, have been issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied compliance with all applicable federal and state securities laws, and no stockholder has none of such outstanding shares was issued in violation of any right of rescission or damages or any “put” preemptive rights or similar right rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect thereto that would have to the Company’s capital stock to which the Company is a Material Adverse Effect. Except as set forth in party or, to the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any knowledge of the other Transaction Documents Company, between or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies among any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)stockholders.

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights AgreementSEC Reports, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities 1933 Act. Except as set forth in the Commission DocumentsSEC Reports, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission DocumentsSEC Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission DocumentsSEC Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsSEC Reports, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The capitalization of the Company is as set forth on Schedule 3.1(w), which Schedule 3.1(w) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Other than as described in the SEC Reports, the Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as set forth on Schedule 3.1(w), no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Commission transactions contemplated by the Transaction Documents, this Agreement and the Registration Rights Agreement. Except as set forth on Schedule 3.1(w), there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documentson Schedule 3.1(w), no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission Documentson Schedule 3.1(w), the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission Documentson Schedule 3.1(w), the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would reasonably be expected to have a Material Adverse Effect. Except as set forth in the Commission Documentson Schedule 3.1(w), there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The authorized authorized, issued and outstanding capital stock of the Company and the shares thereof issued and outstanding were is as set forth in the Commission Documents as of the dates reflected therein. All of the Schedule 3.2 hereto and all issued and outstanding shares of Common Stock have been duly authorized and capital stock of the Company are validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsSchedule 3.2 hereto, this Agreement and the Registration Rights Agreement, (i) there are no agreements outstanding securities of the Company or any of its Subsidiaries which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company or any Subsidiary entitled to preemptive or similar rights arising out of any agreement or understanding with the Company or any Subsidiary by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements under by which the Company or any of its Subsidiaries is obligated or may become bound to register redeem a security of the sale Company or any of its Subsidiaries; (ii) neither the Company nor any securities under the Securities Act. Except Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement except for its equity incentive plans set forth on Schedule 3.2; and (iii) except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and Schedule 3.2 there are no outstanding debt securities and no options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or any Subsidiary or contracts, commitments, understandings, or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in any Subsidiary, or securities or rights convertible or exchangeable into shares of capital stock of the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans Company or arrangementsany Subsidiary. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsSchedule 3.2 and as otherwise required by law, the Company is not a party to, and it has there are no Knowledge of, any agreement restricting restrictions upon the voting or transfer of any of the shares of the capital stock of the Company pursuant to the Company’s Charter Documents (as defined below) or other governing documents or any agreement or other instruments to which the Company is a party or by which the Company is bound. Except as set forth in All of the Commission Documents, the offer issued and sale outstanding shares of all capital stock, convertible or exchangeable securities, rights, warrants or options stock of the Company are validly issued, fully paid and nonassessable and the shares of capital stock of the Subsidiaries are owned by the Company, free and clear of any mortgages, pledges, liens, claims, charges, encumbrances or other restrictions (collectively, “Encumbrances”). All of such outstanding capital stock has been issued prior to the Closing Date complied in compliance with all applicable federal and state securities laws. The issuance and sale of the Securities and, upon issuance, the Common Stock issuable upon exercise of the Warrants (the “Warrant Shares”), as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Subscribers and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except the Placement Agent) and except as set forth in Schedule 3.2 will not result in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any adjustment of the other Transaction Documents exercise, conversion, exchange or the consummation reset price of the transactions described herein or thereinany outstanding security. The Company has furnished is not a party to any outstanding stockholder purchase rights and does not have a “poison pill” or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as any similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Company upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents Disclosure Schedules as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights AgreementDisclosure Schedules, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act, other than disclosed in Schedule 3.1(z). Except as set forth in the Commission DocumentsDisclosure Schedules, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission DocumentsDisclosure Schedules, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission DocumentsDisclosure Schedules, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsDisclosure Schedules, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).other Transaction Documents

Capitalization and Voting Rights. The authorized capital stock of the Company Borrower and all securities of the shares thereof Borrower issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Borrower have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights AgreementSEC Reports, there are no agreements or arrangements under which the Company Borrower is obligated to register the sale of any of the Borrower’s securities under the Securities Act. Except as set forth in the Commission DocumentsSEC Reports, no shares of Common Stock and/or other securities of the Borrower are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company Borrower is or may become bound to issue additional shares of the capital stock and/or other securities of the Company Borrower or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company Borrower other than those issued or granted in the ordinary course of business pursuant to the CompanyBorrower’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company Borrower to sell restricted securities or and/or as set forth in the Commission DocumentsSEC Reports, the Company Borrower is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the CompanyBorrower. Except as set forth in the Commission DocumentsSEC Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company Borrower when any such securities of the Borrower were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Borrower has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsSEC Reports, there are no securities or instruments of the Borrower containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Documents.

Capitalization and Voting Rights. The capitalization of the Company is as set forth on Schedule 3.1(w), which Schedule 3.1(w) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth on Schedule 3.1(w), the Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as set forth on Schedule 3.1(w), no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Commission transactions contemplated by the Transaction Documents, this Agreement and the Registration Rights Agreement. Except as set forth on Schedule 3.1(w), there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documentson Schedule 3.1(w), no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission Documentson Schedule 3.1(w), the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission Documentson Schedule 3.1(w), the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied in all material respects with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effectthereto. Except as set forth in the Commission Documentson Schedule 3.1(w), there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Notes, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Note, the Warrant, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized authorized, issued and outstanding capital stock of the Company and the shares thereof issued and outstanding were is as set forth in the Commission Documents as of the dates reflected therein. All of the Schedule 2.2 hereto and all issued and outstanding shares of Common Stock have been duly authorized and capital stock of the Company are validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsSchedule 2.2 hereto, this Agreement and the Registration Rights Agreement, (i) there are no agreements outstanding securities of the Company or any of its Subsidiaries which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company or any Subsidiary entitled to preemptive or similar rights arising out of any agreement or understanding with the Company or any Subsidiary by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements under by which the Company or any of its Subsidiaries is obligated or may become bound to register redeem a security of the sale Company or any of its Subsidiaries; (ii) neither the Company nor any securities under the Securities Act. Except Subsidiary has any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (iii) except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and Schedule 2.2 there are no outstanding debt securities and no options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or any Subsidiary or contracts, commitments, understandings, or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in any Subsidiary, or securities or rights convertible or exchangeable into shares of capital stock of the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans Company or arrangementsany Subsidiary. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsSchedule 2.2 and as otherwise required by law, the Company is not a party to, and it has there are no Knowledge of, any agreement restricting restrictions upon the voting or transfer of any of the shares of the capital stock of the Company pursuant to the Company’s Charter Documents (as defined below) or other governing documents or any agreement or other instruments to which the Company is a party or by which the Company is bound. Except as set forth in All of the Commission Documents, the offer issued and sale outstanding shares of all capital stock, convertible or exchangeable securities, rights, warrants or options stock of the Company are validly issued, fully paid and nonassessable and the shares of capital stock of the Subsidiaries are owned by the Company, free and clear of any mortgages, pledges, liens, claims, charges, encumbrances or other restrictions (collectively, “Encumbrances”). All of such outstanding capital stock has been issued prior to the Closing Date complied in compliance with all applicable federal and state securities laws. The issuance and sale of the Securities and, upon issuance, the Shares, as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Subscriber) and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except except as set forth in Schedule 2.2 will not result in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any adjustment of the other Transaction Documents exercise, conversion, exchange or the consummation reset price of the transactions described herein or thereinany outstanding security. The Company has furnished does not have outstanding stockholder purchase rights or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as “poison pill” or any similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Company upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities 1933 Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s 's equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “"put” " or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Notes, the Warrants, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished On or made available prior to the Initial Closing Date, and on or prior to the Subsequent Closing Date, the Company will provide the Investor via XXXXX true with a detailed capitalization table, including all outstanding capital stock of the Company and correct copies options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, and securities or rights convertible into or exchangeable for, any shares of capital stock of the Company’s Articles , contingent or fixed, as adjusted, as of Incorporation as in effect on the applicable Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)Date.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined in Section 5.6 hereof) as of the dates reflected therein. As of the date hereof, there are 94,718,112 Common Shares issued and outstanding. All of the outstanding shares of Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, Public Reports and this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock Shares are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized authorized, issued and outstanding capital stock of the Company and the shares thereof issued and outstanding were is as set forth in the Commission Documents as of the dates reflected therein. All of the Schedule 2.2 hereto and all issued and outstanding shares of Common Stock have been duly authorized and capital stock of the Company are validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsSchedule 2.2 hereto, this Agreement and the Registration Rights Agreement, (i) there are no agreements outstanding securities of the Company or any of its Subsidiaries which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company or any Subsidiary entitled to preemptive or similar rights arising out of any agreement or understanding with the Company or any Subsidiary by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements under by which the Company or any of its Subsidiaries is obligated or may become bound to register redeem a security of the sale Company or any of its Subsidiaries; (ii) neither the Company nor any securities under the Securities Act. Except Subsidiary has any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (iii) except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and Schedule 2.2 there are no outstanding debt securities and no options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or any Subsidiary or contracts, commitments, understandings, or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in any Subsidiary, or securities or rights convertible or exchangeable into shares of capital stock of the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans Company or arrangementsany Subsidiary. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsSchedule 2.2 and as otherwise required by law, the Company is not a party to, and it has there are no Knowledge of, any agreement restricting restrictions upon the voting or transfer of any of the shares of the capital stock of the Company pursuant to the Company’s Charter Documents (as defined below) or other governing documents or any agreement or other instruments to which the Company is a party or by which the Company is bound. Except as set forth in All of the Commission Documents, the offer issued and sale outstanding shares of all capital stock, convertible or exchangeable securities, rights, warrants or options stock of the Company are validly issued, fully paid and nonassessable and the shares of capital stock of the Subsidiaries are owned by the Company, free and clear of any mortgages, pledges, liens, claims, charges, encumbrances or other restrictions (collectively, “Encumbrances”). All of such outstanding capital stock has been issued prior to the Closing Date complied in compliance with all applicable federal and state securities laws. The issuance and sale of the Securities as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Subscriber) and, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except except as set forth in Schedule 2.2, will not result in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any adjustment of the other Transaction Documents exercise, conversion, exchange or the consummation reset price of the transactions described herein or thereinany outstanding security. The Company has furnished does not have outstanding stockholder purchase rights or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as “poison pill” or any similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Company upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, SEC Reports and other than as contemplated by this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission DocumentsSEC Reports, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable or exercisable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission DocumentsSEC Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission DocumentsSEC Reports, the offer and sale of all capital stock, convertible convertible, exercisable or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsSEC Reports, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents as of the dates reflected thereinSEC Reports. All of the outstanding shares of Common Stock and other capital stock and equity securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable, and all the outstanding shares of capital stock or other equity interests of each Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any Lien. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there There are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documents, no No shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documentssecurities, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in To the Commission DocumentsCompany’s knowledge, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there There are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The authorized authorized, issued and outstanding capital stock of the Company and the shares thereof issued and outstanding were is as set forth in the Commission Documents as of the dates reflected therein. All of the Schedule 2.2 hereto and all issued and outstanding shares of Common Stock have been duly authorized and capital stock of the Company are validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsSchedule 2.2 hereto, this Agreement and the Registration Rights Agreement, (i) there are no agreements outstanding securities of the Company or any of its Subsidiaries which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company or any Subsidiary entitled to preemptive or similar rights arising out of any agreement or understanding with the Company or any Subsidiary by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements under by which the Company or any of its Subsidiaries is obligated or may become bound to register redeem a security of the sale Company or any of its Subsidiaries; (ii) neither the Company nor any securities under the Securities Act. Except Subsidiary has any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (iii) except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and Schedule 2.2 there are no outstanding debt securities and no options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or any Subsidiary or contracts, commitments, understandings, or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in any Subsidiary, or securities or rights convertible or exchangeable into shares of capital stock of the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans Company or arrangementsany Subsidiary. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsSchedule 2.2 and as otherwise required by law, the Company is not a party to, and it has there are no Knowledge of, any agreement restricting restrictions upon the voting or transfer of any of the shares of the capital stock of the Company pursuant to the Company’s Charter Documents (as defined below) or other governing documents or any agreement or other instruments to which the Company is a party or by which the Company is bound. Except as set forth in All of the Commission Documents, the offer issued and sale outstanding shares of all capital stock, convertible or exchangeable securities, rights, warrants or options stock of the Company are validly issued, fully paid and nonassessable and the shares of capital stock of the Subsidiaries are owned by the Company, free and clear of any mortgages, pledges, liens, claims, charges, encumbrances or other restrictions (collectively, “Encumbrances”). All of such outstanding capital stock has been issued prior to the Closing Date complied in compliance with all applicable federal and state securities laws. The issuance and sale of the Securities and, and no stockholder has upon issuance, the Warrant Shares, as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except other person (other than the Subscriber) and, except as set forth in Schedule 2.2, will not result in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any adjustment of the other Transaction Documents exercise, conversion, exchange or the consummation reset price of the transactions described herein or thereinany outstanding security. The Company has furnished does not have outstanding stockholder purchase rights or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as “poison pill” or any similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Company upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The authorized authorized, issued and outstanding capital stock of the Company and the shares thereof issued and outstanding were is as set forth in the Commission Documents as of the dates reflected therein. All of the Schedule 3.2 hereto and all issued and outstanding shares of Common Stock have been duly authorized and capital stock of the Company are validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsSchedule 3.2 hereto, this Agreement and the Registration Rights Agreement, (i) there are no agreements outstanding securities of the Company or any of its Subsidiaries which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company or any Subsidiary entitled to preemptive or similar rights arising out of any agreement or understanding with the Company or any Subsidiary by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements under by which the Company or any of its Subsidiaries is obligated or may become bound to register redeem a security of the sale Company or any of its Subsidiaries; (ii) neither the Company nor any securities under the Securities Act. Except Subsidiary has any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (iii) except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and Schedule 3.2 there are no outstanding debt securities and no options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or any Subsidiary or contracts, commitments, understandings, or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in any Subsidiary, or securities or rights convertible or exchangeable into shares of capital stock of the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans Company or arrangementsany Subsidiary. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsSchedule 3.2 and as otherwise required by law, the Company is not a party to, and it has there are no Knowledge of, any agreement restricting restrictions upon the voting or transfer of any of the shares of the capital stock of the Company pursuant to the Company’s Charter Documents (as defined below) or other governing documents or any agreement or other instruments to which the Company is a party or by which the Company is bound. Except as set forth in All of the Commission Documents, the offer issued and sale outstanding shares of all capital stock, convertible or exchangeable securities, rights, warrants or options stock of the Company are validly issued, fully paid and nonassessable and the shares of capital stock of the Subsidiaries are owned by the Company, free and clear of any mortgages, pledges, liens, claims, charges, encumbrances or other restrictions (collectively, “Encumbrances”). All of such outstanding capital stock has been issued prior to the Closing Date complied in compliance with all applicable federal and state securities laws. The issuance and sale of the Securities and, upon issuance, the Shares, as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Subscriber) and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except except as set forth in Schedule 3.2 will not result in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any adjustment of the other Transaction Documents exercise, conversion, exchange or the consummation reset price of the transactions described herein or thereinany outstanding security. The Company has furnished does not have outstanding stockholder purchase rights or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as “poison pill” or any similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Company upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The authorized capital stock capitalization of the Company and the shares thereof issued and outstanding were is as set forth in on Schedule 3.5, which Schedule 3.5 shall also include the Commission Documents as number of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issuedowned beneficially, and are fully paid and nonassessableof record, by Affiliates of the Company as of the date hereof. Except as set forth in the Commission Documentson Schedule 3.5, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of has not issued any securities capital stock since its most recently filed periodic report under the Securities Exchange Act, other than pursuant to the exercise of employee stock options under the Company's stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company's employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as set forth on Schedule 3.5, no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Commission transactions contemplated by the Transaction Documents. Except as set forth on Schedule 3.5, no shares and except as a result of Common Stock are entitled to preemptive rights the purchase and sale of the Securities, there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities securities, rights or rights obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. Except as set forth on Schedule 3.5, the issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company other than those are duly authorized, validly issued, fully paid and nonassessable, have been issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied compliance with all applicable federal and state securities laws, and no stockholder has none of such outstanding shares was issued in violation of any right of rescission or damages or any “put” preemptive rights or similar right rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect thereto that would have to the Company's capital stock to which the Company is a Material Adverse Effect. Except as set forth in party or, to the Commission Documentsknowledge of the Company, there are no securities between or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or among any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)'s stockholders.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined in Section 5.6 hereof) as of the dates reflected therein. As of the date hereof, there are 97,019,636 Common Shares issued and outstanding. All of the outstanding shares of Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, Public Reports and this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock Shares are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Notes, the Warrants, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The (a) As of the Closing Date, the authorized capital stock of the Company Issuer and the shares thereof issued and outstanding were shares of capital stock of the Issuer will each be as set forth in the Commission Documents as of the dates reflected thereinon Schedule 3.04(a)(i). All of the issued and outstanding shares of capital stock of the Issuer will be validly issued, fully paid and nonassessable, and the holders thereof will not be entitled to any preemptive or other similar rights. As of the Closing Date, 4,012,000 shares of Common Stock have been reserved for issuance in connection with the conversion of the Series A Preferred and 3,000,000 shares of Common Stock are issuable under the terms of the Issuer's stock incentive plan (the "1996 Flexible Incentive Plan"). Copies of the 1996 Flexible Incentive Plan, which has been adopted by the Board of Directors of the Issuer prior to the date hereof and, as in effect on the date hereof, has been delivered to the Purchaser prior to the date hereof. Except as set forth on Schedule 3.04(a)(ii), the Certificate of Amendment and the rights provided for in the Securityholders Agreement, the 1996 Flexible Incentive Plan is the only plan or arrangement in existence relating to the issuance of capital stock of the Issuer. All shares of Common Stock to be issued upon conversion of the Series A Preferred and upon the exercise of options granted pursuant to the terms of any stock incentive plans adopted by the Issuer will be duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in this Section 3.04(a) or on Schedule 3.04(a)(iii), upon the Commission Documents, this Agreement and consummation of the Registration Rights AgreementClosing, there are will be outstanding no agreements or arrangements under which securities of the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities Issuer and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, or options or other rights to acquire from the Issuer, or other obligations of the Issuer to issue, directly or indirectly any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)Issuer.

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents Schedule 3.1(o) as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there There are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documents, no No shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documentssecurities, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in To the Commission DocumentsCompany’s knowledge, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there There are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Documents.

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights AgreementSEC Reports, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission DocumentsSEC Reports, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission DocumentsSEC Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission DocumentsSEC Reports, to the Company’s knowledge, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsSEC Reports, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles other Documents. Except as set forth in the SEC Reports, no Person has any right of Incorporation as first refusal, preemptive right, right of participation, or any similar right to participate in effect on the Closing Date (transactions contemplated by the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)Documents.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, Schedule 2.2 and this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities 1933 Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, to the best of the Company’s knowledge, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and and, to the best of the Company’s knowledge, no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Notes or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were is as set forth in the Commission Documents SEC Reports (as defined below) and, as of the dates reflected thereindate hereof, the Company has, 94,894,079 shares of Common Stock issued and outstanding and no shares of preferred stock, par value $0.001 per shares, issued and outstanding. All of the issued and outstanding shares of Common Stock have been duly authorized and capital stock of the Company are validly issued, and are fully paid and nonassessable. There are no outstanding securities of the Company which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company entitled to preemptive or similar rights arising out of any agreement or understanding with the Company by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company. The Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement. Except as set forth grants made pursuant to the NEXGEL, Inc. 2019 Long-Term Incentive Plan or otherwise described in the Commission Documents, this Agreement and the Registration Rights AgreementSEC Reports, there are no agreements outstanding options, warrants, agreements, convertible securities, preemptive rights or arrangements under which other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no or contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued Company, or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting rights convertible or transfer of any exchangeable into shares of the capital stock of the Company. Except as set forth in otherwise required by law, there are no restrictions upon the Commission Documents, voting or transfer of any of the offer and sale shares of all capital stock, convertible or exchangeable securities, rights, warrants or options stock of the Company issued prior pursuant to the Closing Date complied Company’s Charter Documents or other governing documents or any agreement or other instruments to which the Company is a party or by which the Company is bound. All of such outstanding capital stock has been issued in compliance in all material respects with all applicable federal and state securities laws. The issuance and sale of the Shares and, upon issuance, the Shares, as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Purchasers) and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth will not result in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any adjustment of the other Transaction Documents exercise, conversion, exchange or the consummation reset price of the transactions described herein or thereinany outstanding security. The Company has furnished does not have outstanding shareholder purchase rights or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as “poison pill” or any similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Company upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX EXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Disclosure Schedule or the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX EXXXX true and correct copies of the Company’s Articles Certificate of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined in Section 5.6 hereof) as of the dates reflected therein. As of the date hereof, there are 52,356,394 Common Shares issued and outstanding. All of the outstanding shares of Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock Shares are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The capitalization of the Company is as set forth on Schedule II, which Schedule II shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents on Schedule II as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth on Schedule II, no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Commission transactions contemplated by the Transaction Documents, this Agreement and the Registration Rights Agreement. Except as set forth on Schedule II, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documentson Schedule II, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission Documentson Schedule II, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission Documentson Schedule II, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company, when any such securities of the Company issued prior to the Closing Date were issued, complied in all material respects with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effectthereto. Except as set forth in the Commission Documentson Schedule II, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined in Section 5.6 hereof) as of the dates reflected therein. As of the date hereof, there are 86,636,830 Common Shares issued and outstanding. All of the outstanding shares of Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock Shares are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, this Agreement and the Registration Rights AgreementSchedule 5.2, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports and Schedule 5.2, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Units or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined herein) as of the dates reflected therein. On or prior to each of the Closing Date, the Company shall provide the Investor with a detailed capitalization table setting forth all of the Company’s outstanding capital stock, and all options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company (each, a “Current Capitalization Table”). All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsCurrent Capitalization Tables, the Public Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities 1933 Act. Except as set forth in the Commission DocumentsCurrent Capitalization Tables or the Public Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports or the Current Capitalization Tables, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports or the Current Capitalization Tables, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports or the Current Capitalization Tables, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Notes, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized authorized, issued and outstanding capital stock of the Company and the shares thereof issued and outstanding were Purchaser is as set forth in the Commission Transaction Documents as of the dates reflected therein. All of the and all issued and outstanding shares of Common Stock have been duly authorized and capital stock of the Purchaser are validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsTransaction Documents hereto, this Agreement and the Registration Rights Agreement, (i) there are no outstanding securities of the Purchaser or its Subsidiary which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Purchaser or the Subsidiary entitled to preemptive or similar rights arising out of any agreement or understanding with the Purchaser or the Subsidiary by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements by which the Purchaser or its Subsidiary is or may become bound to redeem a security of the Purchaser or its Subsidiary; (ii) neither the Purchaser nor the Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except similar plan or agreement; and (iii) except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and Transaction Documents there are no outstanding debt securities and no options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Purchaser or the Subsidiary or contracts, commitments, understandings, or arrangements by which the Company Purchaser or the Subsidiary is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued Purchaser or granted in the ordinary course Subsidiary, or securities or rights convertible or exchangeable into shares of business pursuant to capital stock of the Company’s equity incentive and/or compensatory plans Purchaser or arrangementsthe Subsidiary. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsTransaction Documents and as otherwise required by law, the Company is not a party to, and it has there are no Knowledge of, any agreement restricting restrictions upon the voting or transfer of any of the shares of the capital stock of the CompanyPurchaser pursuant to the Purchaser’s Charter Documents (as defined below) or other governing documents or any agreement or other instruments to which the Purchaser is a party or by which the Purchaser is bound. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options All of the Company issued prior to and outstanding shares of capital stock of the Closing Date complied Purchaser are validly issued, fully paid and non-assessable and the shares of capital stock of the Subsidiary are owned by the Purchaser, free and clear of any Encumbrances. All of such outstanding capital stock has been issued in compliance with all applicable federal and state securities laws, . The issuance and no stockholder has sale of the Securities will not obligate the Purchaser to issue shares of Common Stock or other securities to any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except other person (other than the Investor) and except as set forth in Transaction Documents will not result in the Commission Documentsadjustment of the exercise, there are no securities conversion, exchange or instruments containing anti-dilution reset price of any outstanding security. The Purchaser does not have outstanding stockholder purchase rights or similar provisions that will be triggered by this Agreement “poison pill” or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Purchaser upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The capitalization of the Company as of May 25, 2022 is as set forth on Schedule 3.1(w), which Schedule 3.1(w) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents on Schedule 3.1(w) as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth on Schedule 3.1(w), no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Commission transactions contemplated by the Transaction Documents, this Agreement and the Registration Rights Agreement. Except as set forth on Schedule 3.1(w), there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documentson Schedule 3.1(w), no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission Documentson Schedule 3.1(w), the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission Documentson Schedule 3.1(w), the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company, when any such securities of the Company issued prior to the Closing Date were issued, complied in all material respects with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effectthereto. Except as set forth in the Commission Documentson Schedule 3.1(w), there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined herein) as of the dates reflected therein. On or prior to each of the Initial Closing Date and each Additional Closing Date, the Company shall provide the Investor with a detailed capitalization table setting forth all of the Company’s outstanding capital stock, and all options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company (each, a “Current Capitalization Table”). All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsCurrent Capitalization Tables, the Public Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities 1933 Act. Except as set forth in the Commission DocumentsCurrent Capitalization Tables or the Public Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports or the Current Capitalization Tables, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports or the Current Capitalization Tables, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports or the Current Capitalization Tables, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Notes, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights AgreementSEC Reports, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission DocumentsSEC Reports, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission DocumentsSEC Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission DocumentsSEC Reports, to the Company’s knowledge, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsSEC Reports, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Documents.

Capitalization and Voting Rights. The As of the Closing (after giving effect to the Contribution Transaction), the entire authorized capital stock of the Company and will consist of (i) 40,000,000 shares of the Class A Common Stock, of which 31,284,782 shares thereof are issued and outstanding were (not including the Company Shares) and (ii) 5,000,000 shares of Preferred Stock, par value $.001 per share (the “Preferred Stock”), none of which will be issued and outstanding. As of the Closing, all of the issued and outstanding shares of Class A Common Stock will be beneficially owned and held of record as set forth in the Commission Documents as on Schedule 7(d) attached hereto, free and clear of all Liens, restrictions on voting rights, purchase options, calls, preemptive rights or similar third party rights on sale or restrictions on transfer (other than restrictions imposed by applicable securities Laws). As of the dates reflected therein. All of Closing, the issued and outstanding shares of Class A Common Stock have been will be duly authorized and validly issued, and are fully paid and nonassessable, issued in accordance with the registration or qualification provisions of the Securities Act and any relevant Laws, or pursuant to valid exemptions therefrom, and are not, and were not at the date of issuance, subject to preemptive rights created by Law, Governing Documents or any Contract. Except as set forth in on Schedule 7(d), as of the Commission Documents, this Agreement and the Registration Rights AgreementClosing, there are no will not be outstanding any options, warrants, rights (including conversion, subscription, purchase, exchange or preemptive rights) or agreements or arrangements under which commitments for the purchase or acquisition from or issuance by the Company is obligated to register the sale of any shares of its capital stock or any securities under or obligations convertible or exchangeable into or exercisable for any securities of the Securities ActCompany, and no securities, Contracts or instruments evidencing such rights are authorized, issued or outstanding. Except as set forth in the Commission Documentson Schedule 7(d), no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares as of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsClosing, the Company is not and, to the Knowledge of the Company, no stockholder of the Company is, a party toor subject to any Contract, proxy or understanding, and it has there will be no Knowledge ofContract, any agreement restricting proxy or understanding which affects or relates to the voting or transfer giving of written consents with respect to any shares of the capital stock security of the Company. Except for the Registration Agreement, as set forth in of the Commission DocumentsClosing, the offer and sale Company will not be under any contractual or other obligation to register any of all capital stock, convertible or exchangeable its presently outstanding securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in on Schedule 7(d), as of the Commission DocumentsClosing, there are will be no securities rights of first refusal, co-sale rights or instruments containing anti-dilution registration rights (including with respect to sales and resales thereof) granted by the Company with respect to its capital stock. Except as set forth on Schedule 7(d), as of the Closing, there will be no outstanding or authorized stock appreciation, phantom stock, profit participation or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available rights with respect to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights AgreementSEC Reports, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company's securities under the Securities Act. Except as set forth in the Commission DocumentsSEC Reports, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s 's equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission DocumentsSEC Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission DocumentsSEC Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “"put” " or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsSEC Reports, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Documents.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined in Section 5.6 hereof) as of the dates reflected therein. As of the date hereof, there are 104,493,001 Common Shares issued and outstanding. All of the outstanding shares of Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, Public Reports and this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock Shares are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents as of the dates reflected thereinSEC Reports. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there There are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documents, no No shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documentssecurities, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in To the Commission DocumentsCompany’s knowledge, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there There are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Documents.

Capitalization and Voting Rights. (a) The authorized share capital stock of the Company is, and immediately prior to the Subscription Closing will be, US $10,000.00, divided into shares thereof of US $0.001 par value, of which 100 shares are, and immediately prior to the Subscription Closing will be, issued and outstanding were as set forth in (the Commission Documents as of the dates reflected therein“Outstanding Shares”). All of the outstanding shares of Common Stock (b) The Outstanding Shares have been duly authorized and validly issued, and were issued pursuant to valid exemptions from the registration or qualification requirements of the Securities Act of 1933, as amended (the “Securities Act”), and any relevant state securities laws. The Outstanding Shares are fully paid and nonassessablenon-assessable. (c) Except as set forth contemplated by this Agreement, those certain subscription agreements to be entered into in connection with the Commission DocumentsPrivate Placement (the “New Subscription Agreements”), this Agreement any Management Incentive Plan and the Registration Rights Shareholders Agreement, there are no agreements is not outstanding any option, warrant, profits interest, right (contingent or arrangements under which other, including conversion, exchange, participation, right of first refusal, co-sale or preemptive rights) or agreement for the purchase or acquisition from the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the its capital stock of the Company or any options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities profits interest or rights convertible into or exchangeable for, for any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangementsthereof. Except for customary transfer restrictions contained in agreements entered into as contemplated by this Agreement, the Shareholders Agreement, the New Subscription Agreements and any Management – 9 – AGER BERMUDA HOLDING LTD. – SUBSCRIPTION AGREEMENT Incentive Plan, there is no commitment by the Company to sell restricted issue shares, subscriptions, warrants, options, profits interest, convertible or exchangeable securities or other such rights or to distribute to holders of its equity securities any evidence of indebtedness or asset. Except as set forth contemplated by this Agreement, the Bye-laws, the Shareholders Agreement, a voting agreement among Apollo Global Management, LLC or an investment vehicle managed by Apollo Global Management, LLC or one of its Subsidiaries and Athene Holding Ltd. or one of its Subsidiaries relating to voting of Class B common shares in the Commission Documents, director elections and any Management Incentive Plan: (i) the Company is not a party or subject to any agreement or understanding, and, to the Company’s knowledge, there is no agreement or understanding between or among any holders of the Company’s capital stock relating to the acquisition, disposition or voting or giving of written consents with respect to any security of, or matter relating to, and it the Company or any Company Subsidiary, other than the New Subscription Agreements, (ii) the Company has no Knowledge ofobligation (contingent or otherwise) to purchase, any agreement restricting the voting redeem or transfer of otherwise acquire any shares of the its capital stock or other securities or any interest therein or to pay any dividend or make any other distribution in respect thereof, other than pursuant to the New Subscription Agreements, (iii) there are no restrictions on the transfer of the Company’s capital stock other than those arising from securities, insurance regulatory and other laws and regulations and (iv) no Person is entitled to (A) any preemptive or similar right with respect to the issuance of any capital stock or other securities of the Company or (B) any rights with respect to the registration of any capital stock or other securities of the Company under the Securities Act. Except (d) The rights and preferences of the Class A, Class B-1, Class B-2 and Class C-1 common shares immediately following the Closing are as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities Bye-laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).Section 4.3

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to each of the Investor Investors via XXXXX true and correct copies of the Company’s Articles Certificate of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, Public Reports and this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Units or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were is as set forth in the Commission Documents SEC Reports (as defined below) and, as of the dates reflected thereindate hereof, the Company has 82,380,208 shares of Common Stock issued and outstanding and no shares of preferred stock, par value $0.001 per shares, issued and outstanding. All of the issued and outstanding shares of Common Stock have been duly authorized and capital stock of the Company are validly issued, and are fully paid and nonassessable. There are no outstanding securities of the Company which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company entitled to preemptive or similar rights arising out of any agreement or understanding with the Company by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company. The Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement. Except as set forth grants made pursuant to the NEXGEL, Inc. 2019 Long-Term Incentive Plan or otherwise described in the Commission Documents, this Agreement and the Registration Rights AgreementSEC Reports, there are no agreements outstanding options, warrants, agreements, convertible securities, preemptive rights or arrangements under which other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no or contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued Company, or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting rights convertible or transfer of any exchangeable into shares of the capital stock of the Company. Except as set forth in otherwise required by law, there are no restrictions upon the Commission Documents, voting or transfer of any of the offer and sale shares of all capital stock, convertible or exchangeable securities, rights, warrants or options stock of the Company issued prior pursuant to the Closing Date complied Company’s Charter Documents or other governing documents or any agreement or other instruments to which the Company is a party or by which the Company is bound. All of such outstanding capital stock has been issued in compliance in all material respects with all applicable federal and state securities laws. The issuance and sale of the Shares and, upon issuance, the Shares, as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Purchasers) and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth will not result in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any adjustment of the other Transaction Documents exercise, conversion, exchange or the consummation reset price of the transactions described herein or thereinany outstanding security. The Company has furnished does not have outstanding shareholder purchase rights or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as “poison pill” or any similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Company upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The authorized capital stock As of the Effective Date, the Company and the is authorized to issue 90,000,000 shares thereof of Common Stock, of which 33,014,079 shares were issued and outstanding were as set forth in the Commission Documents as outstanding, and 10,000,000 shares of “blank check” preferred stock, of which no shares are issued or outstanding, nor have any of the dates reflected thereinterms or preferences thereof been designated. All of the issued and outstanding shares of Common Stock have been duly authorized and of the Company are validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsDisclosure Schedule, this Agreement and the Registration Rights Agreement, (a) there are no agreements outstanding securities of the Company which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company entitled to preemptive or similar rights arising out of any agreement or understanding with the Company by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements under by which the Company is obligated or may become bound to register redeem a security of the sale of Company; (b) the Company has no stock appreciation rights or “phantom stock” plans or agreements or any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights similar plan or agreement; and (c) there are no outstanding debt securities and no options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued Company, or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting rights convertible or transfer of any exchangeable into shares of the capital stock of the Company. Except as set forth in the Commission DocumentsDisclosure Schedule and as otherwise required by law, there are no restrictions upon the offer and sale voting or transfer of all any of the shares of capital stock, convertible or exchangeable securities, rights, warrants or options stock of the Company issued prior pursuant to the Closing Date complied Charter Documents or other governing documents or any agreement or other instruments to which the Company is a party or by which the Company is bound. All of the issued and outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable. All of such outstanding Common Stock has been issued in compliance in all material respects with all applicable federal and state securities laws. The issuance and sale of the Securities and the shares of Common Stock of the Company issuable upon exercise of the Warrants (the “Warrant Shares”) as contemplated hereby, will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Investors) and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth will not result in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any adjustment of the other Transaction Documents exercise, conversion, exchange or the consummation reset price of the transactions described herein or thereinany outstanding security. The Company has furnished does not have outstanding stockholder purchase rights or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as “poison pill” or any similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Company upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The capitalization of the Company as of the date of this Agreement is as set forth on Schedule 3.1(w), which Schedule 3.1(w) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents on Schedule 3.1(w) as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth on Schedule 3.1(w), no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Commission transactions contemplated by the Transaction Documents, this Agreement and the Registration Rights Agreement. Except as set forth on Schedule 3.1(w), there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documentson Schedule 3.1(w), no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission Documentson Schedule 3.1(w), the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission Documentson Schedule 3.1(w), the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company, when any such securities of the Company issued prior to the Closing Date were issued, complied in all material respects with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effectthereto. Except as set forth in the Commission Documentson Schedule 3.1(w), there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The As of August 23, 2023, the Company was authorized to issue 10,000 shares of Common Stock, of which 2,000 shares were issued and outstanding. All issued and outstanding shares of capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and are validly issued, and are fully paid and nonassessable. Except as set forth in on Schedule 2.2 of the Commission DocumentsDisclosure Schedules attached hereto as Exhibit E (the “Disclosure Schedules”), this Agreement and the Registration Rights Agreement, (a) there are no agreements outstanding securities of the Company which contain any right of first refusal, preemptive right, redemption right, right of participation or any other similar rights or provisions, nor is any holder of securities of the Company entitled to any such rights arising out of any agreement or understanding with the Company by virtue of this Agreement, and there are no contracts, commitments, understandings or arrangements under by which the Company is obligated or may become bound to register redeem a security of the sale of Company; (b) the Company does not have any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive stock appreciation rights and or “phantom stock” plans or agreements or any similar plan or agreement; (c) there are no outstanding debt securities and no options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting rights convertible or transfer of any exchangeable into shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer ; and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, (d) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement Agreement. Except as required by law or contained in Company’s Charter Documents, there are no restrictions upon the voting or transfer of any of the other Transaction Documents or the consummation shares of capital stock of the transactions described herein Company. All of such outstanding capital stock has been issued in compliance with applicable federal and state securities laws. The sale and issuance of the Securities as contemplated hereby will not obligate the Company to issue shares of any capital stock or thereinother securities of the Company to any other person (other than the subscribers for Securities in the Offering, including the Subscriber or as otherwise set forth in Schedule 2.2 of the Disclosure Schedules) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any outstanding security. The Company has furnished does not have outstanding stockholder purchase rights or made available “poison pills” or any similar arrangement in effect giving any person the right to purchase any equity interest in the Company upon the occurrence of certain events. Except as set forth on Schedule 2.2 of the Disclosure Schedules, there are no stockholders agreements, voting agreements or other similar agreements with respect to the Investor via XXXXX true and correct copies Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)stockholders.

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents SEC Reports as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights AgreementSEC Reports, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission DocumentsSEC Reports, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission DocumentsSEC Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission DocumentsSEC Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would reasonably be expected to have a Material Adverse Effect. Except as set forth in the Commission DocumentsSEC Reports, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Transaction Documents.

Capitalization and Voting Rights. The authorized authorized, issued and outstanding capital stock of the Company and the shares thereof issued and outstanding were is as set forth in the Commission Documents SEC Reports (as of the dates reflected therein. All of the defined below) and all issued and outstanding shares of Common Stock have been duly authorized and capital stock of the Company are validly issued, and are fully paid and nonassessable. Except as set forth in There are no outstanding securities of the Commission Company which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company entitled to preemptive or similar rights arising out of any agreement or understanding with the Company by virtue of any of the Transaction Documents, this Agreement and there are no contracts, commitments, understandings or arrangements by which the Registration Rights AgreementCompany is or may become bound to redeem a security of the Company. The Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement. Except grants made pursuant to the AquaMed Technologies, Inc. 2019 Long-Term Incentive Plan, there are no agreements outstanding options, warrants, agreements, convertible securities, preemptive rights or arrangements under which other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no or contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued Company, or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting rights convertible or transfer of any exchangeable into shares of the capital stock of the Company. Except as set forth in otherwise required by law, there are no restrictions upon the Commission Documents, voting or transfer of any of the offer and sale shares of all capital stock, convertible or exchangeable securities, rights, warrants or options stock of the Company issued prior pursuant to the Closing Date complied Company’s Charter Documents or other governing documents or any agreement or other instruments to which the Company is a party or by which the Company is bound. All of such outstanding capital stock has been issued in compliance in all material respects with all applicable federal and state securities laws. The issuance and sale of the Shares and, upon issuance, the Shares, as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Purchasers) and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth will not result in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any adjustment of the other Transaction Documents exercise, conversion, exchange or the consummation reset price of the transactions described herein or thereinany outstanding security. The Company has furnished does not have outstanding shareholder purchase rights or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as “poison pill” or any similar arrangement in effect on giving any person the Closing Date (right to purchase any equity interest in the “Charter”), and Company upon the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)occurrence of certain events.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities 1933 Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Note, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined in Section 5.6 hereof) as of the dates reflected therein. As of the date hereof, there are 547,394,239 Common Shares issued and outstanding. All of the outstanding shares of Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock Shares are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined below) as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, Public Reports and this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s 's equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “"put” " or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Notes, the Warrants, this Agreement or any of the other Transaction Documents Agreement, or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s 's equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “"put” " or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Note, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents Schedule 3.1(n) as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreementmost recent SEC Reports, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth in the Commission Documentsmost recent SEC Reports, no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documentsmost recent SEC Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission Documentsmost recent SEC Reports, to the Company’s knowledge, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documentsmost recent SEC Reports, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”)other Documents.

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX EXXXX true and correct copies of the Company’s Articles Certificate of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles Certificate of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined in Section 5.6 hereof) as of the dates reflected therein. As of the Effective Date, there are _________ Common Shares issued and outstanding. All of the outstanding shares of Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, Public Reports and this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock Shares are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities or this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company Borrower and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports (as defined below) as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, Public Reports and this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company Borrower is obligated to register the sale of any securities under the Securities 1933 Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company Borrower is or may become bound to issue additional shares of the capital stock of the Company Borrower or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company Borrower other than those issued or granted in the ordinary course of business pursuant to the CompanyBorrower’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company Borrower to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company Borrower is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the CompanyBorrower. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company Borrower issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Note, the Warrants, this Agreement or any of the other Transaction Documents Agreement, or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s 's equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission Documents, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “"put” " or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX EDGAR true and correct copies of the Company’s 's Articles of Incorporation Incorpoxxxxxn as in effect on the Closing Date (the “"Charter”"), and the Company’s 's Bylaws as in effect on the Closing Date (the “Bylaws”"BYLAWS").

Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Commission DocumentsPublic Reports, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission DocumentsPublic Reports, no shares of Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s 's equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission DocumentsPublic Reports, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth in the Commission DocumentsPublic Reports, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior to the Closing applicable Representation Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission or damages or any “"put” " or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsPublic Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Notes, this Agreement or any of the other Transaction Documents Registration Rights Agreement or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).

Capitalization and Voting Rights. The authorized capital stock of the Company and all securities of the shares thereof Company issued and outstanding were as are set forth in the Commission Documents Disclosure Schedules as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights AgreementDisclosure Schedules, there are no agreements or arrangements under which the Company is obligated to register the sale of any of the Company’s securities under the Securities Act, other than disclosed in Schedule 3.1(x). Except as set forth in the Commission DocumentsDisclosure Schedules and on Schedule 3.1(x), no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to sell restricted securities or and/or as set forth in the Commission DocumentsDisclosure Schedules, the Company is not a party to, and it has no Knowledge knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as set forth in the Commission DocumentsDisclosure Schedules, the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants or warrants, options and/or any other securities of the Company when any such securities of the Company were issued prior to the Closing Date complied with all applicable federal and state securities laws, and no stockholder current and/or prior holder of any securities of the Company has any right of rescission or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as set forth in the Commission DocumentsDisclosure Schedules, there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by this Agreement or any the issuance and/or sale of the other Transaction Documents or Securities and/or the consummation of the transactions described herein or therein. The Company has furnished or made available to the Investor via XXXXX true and correct copies in any of the Company’s Articles of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Bylaws as in effect on the Closing Date (the “Bylaws”).other Transaction Documents