Common use of Capitalization and Voting Rights Clause in Contracts

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist prior to the Closing, of: (i) Preferred Stock. 1,000,000 shares of Preferred Stock, of which 666,667 shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstanding. All of the issued shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, and have been issued in compliance with applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholders. (iii) Except for the conversion privileges of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997, there are not outstanding any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock; provided that the Company has reserved 1,000,000 shares, of which options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of the Company pursuant to equity incentive agreements approved by the Board of Directors. The Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director of the Company.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist prior to as of the Closing, date hereof consists of: : (i) Preferred Stock. 1,000,000 400,000,000 shares of Preferred StockCommon Stock of which, as of May 22, 2020, (A) 46,055,395 shares were issued and outstanding, (B) 13,156,900 shares were reserved for issuance pursuant to the Company’s equity incentive plans (including its stock purchase plan) described in the SEC Reports, and (C) 7,087,512 shares were issuable upon the exercise of stock options outstanding, and (ii) 10,000,000 shares of designated preferred stock, of which 666,667 no shares have been designated Series A Preferred Stock (are issued and outstanding as of the "Series A Preferred Stock") date of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstanding. All of the issued and outstanding shares of Common Stock (1) have been duly authorized and validly issued, (2) are fully paid and nonassessable, non-assessable and have been (3) were issued in compliance with all applicable federal and state securities laws Laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims not in violation of any nature whatsoever. None preemptive rights. (b) All of the issued authorized shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholdersare entitled to one (1) vote per share. (iiic) Except for as described or referred to in the conversion privileges SEC Reports, as of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997date hereof, there are not were not: (i) any outstanding any equity securities, options, warrants, rights (including conversion or preemptive rights) or other agreements for the purchase or acquisition from pursuant to which the Company of is or may become obligated to issue, sell or repurchase any shares of its capital stock; provided that the Company has reserved 1,000,000 shares, of which options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants stock or directors any other securities of the Company other than equity securities that may have been granted pursuant to its equity incentive agreements approved by plans, which plans are described in the Board SEC Reports; or (ii) any restrictions on the transfer of Directors. capital stock of the Company other than pursuant to federal or state securities Laws or as set forth in this Agreement. (d) The Company is not a party to or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates relating to the voting of shares of capital stock of the Company or the giving of written consents with respect to any security or by a stockholder or director of the Company.

Capitalization and Voting Rights. (a) The As of the Signing Date, the authorized capital of the Company consists, or will consist prior to the Closing, consists of: : (i) Preferred Stock. 1,000,000 120,000,000 shares of Preferred StockCommon Stock of which, (A) 32,601,748 shares are issued and outstanding, (B) 4,886,021 shares are issuable upon the exercise of outstanding stock options or upon the settlement of outstanding equity awards issued pursuant to the 2014 Stock Option and Grant Plan or the 2015 Stock Option and Incentive Plan, (C) 2,259,224 shares are reserved for future issuance pursuant to the 2015 Stock Option and Incentive Plan, and (D) 1,289,093 shares are reserved for future issuance pursuant to the 2015 Employee Stock Purchase Plan, as amended to date and as the same may be amended and/or restated from time to time, and (ii) 5,000,000 shares of preferred stock, par value $0.001 per share, of which 666,667 no shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstanding. The Company is also party to the Sales Agreement pursuant to which the Company may issue and sell shares of its Common Stock having an aggregate offering price of up to $75,000,000 through Xxxxx and Company, LLC, from time to time, in “at-the-market” offerings or certain negotiated transactions. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, issued and are fully paid and nonassessablenon-assessable, and have been were issued in compliance with applicable federal and state securities laws Laws, and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of not subject to any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholderspre-emptive rights. (iiib) Except for as described or referred to in Section 4.2(a) above and as provided in the conversion privileges Investor Agreement, as of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Signing Date, there are not no outstanding any options, warrants, rights (including conversion including, without limitation, pre-emptive rights), warrants or preemptive rights) options to acquire, or agreements for the purchase instruments convertible into or acquisition from the Company of exchangeable for, any shares of its capital stock; provided that stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock of the Company, any such convertible or exchangeable securities or any such rights, warrants or options. (c) Except as disclosed in the Company SEC Documents, no Person has reserved 1,000,000 shares, of which options any right to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of cause the Company pursuant to equity incentive agreements approved by effect the Board registration under the Securities Act of Directors. The Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director securities of the Company. (d) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist prior to as of the Closing, Effective Date consists of: (i) Preferred Stock. 1,000,000 40,000,000 shares of Preferred Common Stock, of which 666,667 13,937,620 shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") were issued and outstanding as of which 533,333 will be sold pursuant to this Agreement. The rightsMarch 31, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation.1998; and (ii) Common Stock. 10,000,000 5,000,000 shares of common stock preferred stock, $.001 par value per share, of which no shares were issued and outstanding as of the Effective Date. (b) As of March 31, 1998, and except as set forth in the Schedule of Exceptions attached hereto as Exhibit B (the "Common StockSCHEDULE OF EXCEPTIONS"), of which 3,362,877 are currently issued and outstanding. All of the issued shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, and have been issued in compliance with applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholders. there are: (iiii) Except for the conversion privileges of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997, there are not no outstanding any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from pursuant to which the Company of is or may become obligated to issue, sell or repurchase any shares of its capital stock or any other securities of the Company; (ii) no restrictions on the transfer of capital stock of the Company imposed by the Restated Certificate, the By-laws, any agreement to which the Company is a party, any order of any court or any governmental agency to which the Company is subject or any statute (other than those imposed by relevant state and federal securities laws); (iii) no cumulative voting rights for any of the Company's capital stock; provided that (iv) no registration rights under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to shares of the Company's capital stock; and (v) to the actual knowledge of the Company's executive officers (the "COMPANY'S ACTUAL KNOWLEDGE"), no options or other rights to purchase shares of capital stock from stockholders of the Company granted by such stockholders. The Company has reserved 1,000,000 shares, of which options to acquire (i) up to 837,050 2,960,465 shares have been granted, of Common Stock for issuance to employees, consultants or directors of the Company issuances pursuant to equity incentive agreements approved by the Board Company's 1996 Stock Incentive Plan and (ii) up to 100,000 shares of Directors. The Common Stock for issuances pursuant to the Company's 1996 Employee Stock Purchase Plan. (c) Except as set forth in the Schedule of Exceptions, the Company is not a party to or is not subject to any agreement or understandingunderstanding relating to, and to the Company's Actual Knowledge there is no agreement or understanding between any persons and/or entities, entities which affects or relates to to, the voting of shares of capital stock of the Company or the giving of written consents with respect to any security or by a stockholder or director of the Company.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist of the following immediately prior to the Closing, of:Initial Closing (but after giving effect to the Q-RNA Merger)(as defined below): (i) Preferred 44,999,900 shares of Common Stock. 1,000,000 , $0.001 par value per share, 11,241,506 shares of which are issued and outstanding, (ii) 100 shares of Class A Common Stock, $0.001 par value per share, 100 shares of which are issued and outstanding, and (iii) 5,000,000 shares of Preferred Stock, $0.01 par value per share, none of which 666,667 shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") of which 533,333 will be sold pursuant to this Agreement. The rights, privileges are issued and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designationoutstanding. (iib) Common Stock. 10,000,000 All issued and outstanding shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstanding. All of the issued shares of Common Stock (i) have been duly authorized and validly issued, issued and are fully paid and nonassessable, nonassessable and have been (ii) were issued in compliance with all applicable state and federal and state securities laws and are free and clear concerning the issuance of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of any nature whatsoever. None of securities. (c) Other than (i) the issued 1,600,000 shares of Common Stock has been reserved or to be reserved pursuant to the Q-RNA Merger Agreement for issuance under the Company’s stock option plans, (ii) shares which may be issued or is owned or held in violation of any statutory preemptive rights of shareholders. pursuant to the Q-RNA Merger Documents and the Transaction Documents, (iii) Except for other options and warrants described in the conversion privileges of the Series A Preferred Stock to be issued under this Agreement Company Disclosure Package and the right to purchase up to 133,333 (iv) shares of Common Stock issuable pursuant to subscription agreements received by Section 1.2(b) of the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Prior Registration Rights Agreement, there are not no outstanding any options, warrants, rights (including conversion or preemptive rights) rights and rights of first refusal), proxy or stockholder agreements, or arrangements or agreements of any kind for the purchase or acquisition from the Company of any shares of its capital stock; provided that securities. Neither the Company has reserved 1,000,000 sharesoffer, issuance or sale of which options to acquire up to 837,050 shares have been grantedany of the Securities, for or the issuance to employeesof any of the Warrant Shares upon exercise of the Warrants, consultants nor the consummation of any transaction contemplated hereby will result in a change in the exercise or directors conversion price or number of any securities of the Company outstanding pursuant to equity incentive agreements approved by anti-dilution or other similar provisions binding upon the Board of Directors. The Company is not a party and contained in or subject to affecting any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director of the Companysuch securities.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist prior to the Closing, of: (ia) Preferred Stock. 1,000,000 25,000,000 shares of Preferred Stock (the "Preferred Stock"), of which 666,667 10,000,000 shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") , none of which 533,333 will are issued and outstanding immediately prior to the Closing and up to all of which may be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of DesignationRestated Articles. (iib) Common Stock. 10,000,000 200,000,000 shares of common stock ("Common Stock"), of which 3,362,877 55,000,000 shares are currently issued and outstanding. All outstanding as of the issued Closing, all of which shares are owned of Common Stock record by Meret Communications, Inc., a wholly-owned subsidiary of Osicom Technologies, Inc. ("Meret") and have been duly authorized and validly issued, issued and are fully paid and nonassessable, and have been issued in compliance with applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholders. (iiic) Except for (i) the conversion privileges of the Series A Preferred Stock to be issued under this Agreement and the right Agreement, (ii) options to purchase up to 133,333 20,000,000 shares of Common Stock which are granted or reserved for grant to employees, consultants, officers or directors pursuant to subscription agreements received by the Company from various investors Company's 2000 Stock Option/Stock Issuance Plan or any successor stock option plan and (iii) the rights provided in response to Section 2.5 of that Private Placement Memorandum dated November 21, 1997certain Investors' Rights Agreement in the form attached hereto as Exhibit B (the "Investors' Rights Agreement"), there are not outstanding any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock; provided that the Company has reserved 1,000,000 shares, of which options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of the Company pursuant to equity incentive agreements approved by the Board of Directors. The Company is not a party or subject to any agreement or understanding, and and, to the Company's knowledge, there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or the voting by a director of the Company. (d) Neither the offer nor the issuance or sale of the Series A Preferred Stock or the shares of Common Stock issuable upon conversion thereof constitutes or will constitute an event, under any capital stock or convertible security or any anti-dilution or similar provision of any agreement or instrument to which the Company is a party or by which it is bound or affected, which shall either increase the number of shares of capital stock issuable upon conversion of any securities or upon exercise of any warrant or right to subscribe to or purchase any stock or similar security, or decrease the consideration per share of capital stock to be received by the Company upon such conversion or exercise.

Capitalization and Voting Rights. (a) The authorized capital of Homology as of the Company consists, or will consist prior to the Closing, date hereof consists of: : (i) Preferred Stock. 1,000,000 200,000,000 shares of Common Stock of which, as of September 30, 2020, (x) 45,263,849 shares were issued and outstanding, which includes 4,102 shares of unvested restricted stock subject to repurchase, (y) 3,470,008 shares were available for future issuance pursuant to Homology’s stock-based compensation plans and (z) 5,812,832 shares were issuable upon the exercise of stock options outstanding as of such date, and (ii) 10,000,000 shares of Preferred Stock, of which 666,667 no shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") of which 533,333 will be sold pursuant to this Agreement. The rights, privileges are issued and preferences outstanding as of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstandingExecution Date. All of the issued and outstanding shares of Common Stock (A) have been duly authorized and validly issued, (B) are fully paid and nonassessable, non-assessable and have been (C) were issued in compliance with all applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims not in violation of any nature whatsoever. None preemptive rights. (b) All of the issued authorized shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholdersare entitled to one (1) vote per share. (iiic) Except for the conversion privileges As of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 219, 19972020, there are were not (i) any outstanding any equity securities, options, warrants, rights (including conversion or preemptive rights) or other agreements for the purchase pursuant to which Homology is or acquisition from the Company of may become obligated to issue, sell or repurchase any shares of its capital stock; provided that the Company has reserved 1,000,000 shares, stock or any other securities of which Homology other than options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of the Company granted pursuant to equity incentive agreements approved by its stock-based compensation plans, which plans are described in the Board SEC Documents; or (ii) any restrictions on the transfer of Directors. The Company capital stock of Homology other than pursuant to federal or state securities Laws or as set forth in this Agreement. (d) Homology is not a party to or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates relating to the voting of shares of capital stock of Homology or the giving of written consents with respect to any security or by a stockholder or director of Homology. (e) Neither Homology nor any of its Subsidiaries owns or holds the Companyright to acquire any stock, partnership, interest, joint venture interest or other equity ownership interest in any Person.

Capitalization and Voting Rights. (a) The As of the Signing Date, the authorized capital of the Company consists, or will consist prior to the Closing, consists of: : (i) Preferred Stock. 1,000,000 120,000,000 shares of Preferred StockCommon Stock of which, (A) 32,601,748 shares are issued and outstanding, (B) 4,886,021 shares are issuable upon the exercise of outstanding stock options or upon the settlement of outstanding equity awards issued pursuant to the 2014 Stock Option and Grant Plan or the 2015 Stock Option and Incentive Plan, (C) 2,259,224 shares are reserved for future issuance pursuant to the 2015 Stock Option and Incentive Plan, and (D) 1,289,093 shares are reserved for future issuance pursuant to the 2015 Employee Stock Purchase Plan, as amended to date and as the same may be amended and/or restated from time to time, and (ii) 5,000,000 shares of preferred stock, par value $0.001 per share, of which 666,667 no shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstanding. The Company is also party to the Sales Agreement pursuant to which the Company may issue and sell shares of its Common Stock having an aggregate offering price of up to $75,000,000 through Xxxxx and Company, LLC, from time to time, in “at-the-market” offerings or certain negotiated transactions. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, issued and are fully paid and nonassessablenon-assessable, and have been were issued in compliance with applicable federal and state securities laws Laws, and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of not subject to any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholderspre-emptive rights. (iiib) Except for as described or referred to in Section 4.2(a) above and as provided in the conversion privileges Investor Agreement, as of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Signing Date, there are not no outstanding any options, warrants, rights (including conversion including, without limitation, pre-emptive rights), warrants or preemptive rights) options to acquire, or agreements for the purchase instruments convertible into or acquisition from the Company of exchangeable for, any shares of its capital stock; provided that stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock of the Company, any such convertible or exchangeable securities or any such rights, warrants or options. ActiveUS 170788961v.22 (c) Except as disclosed in the Company SEC Documents, no Person has reserved 1,000,000 shares, of which options any right to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of cause the Company pursuant to equity incentive agreements approved by effect the Board registration under the Securities Act of Directors. The Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director securities of the Company. (d) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration.

Capitalization and Voting Rights. (a) The As of the Signing Date, the authorized capital of the Company consists, or will consist prior to the Closing, consists of: : (i) Preferred Stock. 1,000,000 120,000,000 shares of Preferred Common Stock, of which 666,667 (A) 38,696,454 shares have been designated Series A Preferred Stock are issued and outstanding, (B) 7,438,643 shares are issuable upon the "Series A Preferred Stock") exercise of which 533,333 will be sold outstanding stock options or upon the settlement of outstanding equity awards issued pursuant to this Agreement. The rightsthe 2014 Stock Option and Grant Plan, privileges the 2015 Stock Option and preferences of Incentive Plan, or inducement awards in accordance with Nasdaq Listing Rule 5635(c)(4), (C) 3,391,532 shares are reserved for future issuance pursuant to the Series A Preferred 2015 Stock will be as stated in Option and Incentive Plan, and (D) 1,884,309 shares are reserved for future issuance pursuant to the Certificate of Designation. 2015 Employee Stock Purchase Plan, and (ii) Common Stock. 10,000,000 5,000,000 shares of common stock ("Common Stock")preferred stock, par value $0.001 per share, of which 3,362,877 no shares are currently issued and outstanding. The Company is also party to the Sales Agreement pursuant to which the Company may issue and sell shares of its Common Stock having an aggregate offering price of up to $75,000,000 through Xxxxx and Company, LLC, from time to time, in “at-the-market” offerings or certain negotiated transactions. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, issued and are fully paid and nonassessablenon-assessable, and have been were issued in compliance with applicable federal and state securities laws Laws, and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of not subject to any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholderspre-emptive rights. (iiib) Except for as described or referred to in Section 4.2(a) above and as provided in the conversion privileges Investor Agreement, as of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Signing Date, there are not no outstanding any options, warrants, rights (including conversion including, without limitation, pre-emptive rights), warrants or preemptive rights) options to acquire, or agreements for the purchase - 7 - ACTIVEUS 197300656v.12 instruments convertible into or acquisition from the Company of exchangeable for, any shares of its capital stock; provided that stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock of the Company, any such convertible or exchangeable securities or any such rights, warrants or options. (c) Except as disclosed in the Company SEC Documents, no Person has reserved 1,000,000 shares, of which options any right to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of cause the Company pursuant to equity incentive agreements approved by effect the Board registration under the Securities Act of Directors. The Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director securities of the Company. (d) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to terminate, or which to its knowledge is likely to have the effect of terminating, the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration.

Capitalization and Voting Rights. (a) The authorized authorized, issued and outstanding capital stock of the Company consists, or will consist immediately prior to the Closing, Closing of: (i) Preferred Stock. 1,000,000 10,310,000 shares of Preferred Stock, par value $0.001 (the "Preferred Stock"), of which 666,667 (i) 3,310,000 shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") ), of which 533,333 will be sold pursuant to this Agreement3,309,953 shares are outstanding and (ii) 7,000,000 shares have been designated Series B Preferred Stock (the "Series B Preferred Stock"), of which 4,597,702 shares are outstanding. The rights, privileges and preferences of the Series A and Series B Preferred Stock will be are as stated in the Certificate of DesignationRestated Certificate. (ii) Common Stock. 10,000,000 20,000,000 shares of common stock stock, par value $0.001 ("Common Stock"), of which 3,362,877 3,060,000 shares are currently issued and outstanding. All of the issued . (b) The outstanding shares of Series A Preferred Stock and Common Stock have been are owned by the stockholders and in the numbers specified in Exhibit D hereto. (c) The outstanding shares of Series A Preferred Stock and Common Stock are all duly and validly authorized and validly issued, are fully paid and nonassessable, and have been were issued in compliance with all applicable state and federal and state securities laws and are free and clear concerning the issuance of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholderssecurities. (iiid) Except for (A) the conversion privileges of the Series A and Series B Preferred Stock to be issued under this Agreement Stock, (B) the rights provided in Section 3 of the Stockholders' Agreement, and the right (C) currently outstanding options to purchase up to 133,333 604,700 shares of Common Stock granted to employees pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21Company's 1997 Stock Option Plan, 1997as amended (the "Option Plan"), there are not no outstanding any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock; provided that . In addition to the aforementioned options, the Company has reserved 1,000,000 shares, an additional 1,080,300 shares of which its Common Stock for purchase upon exercise of options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of be granted in the Company pursuant to equity incentive agreements approved by future under the Board of DirectorsOption Plan. The Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or other ownership interest in the Company or by a director of the Company.

Capitalization and Voting Rights. (a) The As of July 21, 2006, the authorized capital of the Company consists, or will consist prior to the Closing, consists of: (i) Preferred Stock. 1,000,000 5,000,000 shares of Preferred Stock, par value $0.01 per share (the “Preferred Stock”), of which 666,667 100,000 shares have been designated Series A Junior Participating Preferred Stock (the "“Series A Preferred Stock") ”), none of which 533,333 will be sold pursuant to this Agreement. The rights, privileges are issued and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation.outstanding; and (ii) Common Stock. 10,000,000 100,000,000 shares of common stock ("Common Stock"), of which 3,362,877 31,171,140 shares are currently issued and outstanding. All of the issued outstanding (including 630,000 shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, and have been issued in compliance with applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities subject to vesting or claims of any nature whatsoever. None of the issued shares of Common Stock has been issued other forfeiture restrictions or is owned or held in violation of any statutory preemptive rights of shareholdersrepurchase conditions) . (iiib) Except as set forth in Section 3.2(a) or Section 3.2(c), as of July 21, 2006, there are not issued, reserved for issuance or outstanding, and since such date there have been no issuances or deliveries by the conversion privileges Company or any of its Subsidiaries (other than the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 issuance of shares of Common Stock pursuant to subscription agreements received by the exercise of Company from various investors in response to that Private Placement Memorandum dated November Stock Options outstanding as of July 21, 19972006, there are not outstanding in accordance with their terms as in effect on July 21, 2006) of, any (i) shares of capital stock or other voting securities or equity interests of the Company, (ii) options, warrants, rights (including conversion or preemptive rights) , stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of Common Stock on a deferred basis or agreements for other rights that are linked to the purchase value of Common Stock or acquisition from the value of the Company or any of its Subsidiaries or any part thereof granted under the Company Stock Plans or otherwise), convertible or exchangeable securities, commitments, contracts, agreements or undertakings, in each case, pursuant to which the Company or any of its Subsidiaries is or may become obligated to (A) issue, deliver, sell or repurchase, or cause to be issued, delivered, sold or repurchased, any shares of its capital stock; provided that stock or other voting securities or equity interests of, or any security convertible or exercisable for or exchangeable into any capital stock or other voting securities or equity interests of, the Company has or any of its Subsidiaries or (B) issue, grant, extend or enter into any such option, warrant, right, convertible or exchangeable security, commitment, contract, agreement or undertaking; or (iii) bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote issued, reserved 1,000,000 sharesfor issuance or outstanding. There are no restrictions on the transfer of capital stock of the Company imposed by the Amended and Restated Certificate, the By-laws, any agreement to which the Company is a party, or any order of any court or any Governmental Authorities to which the Company is subject. There are no obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock, other voting securities or equity interests of the Company or any of its Subsidiaries. (c) As of July 21, 2006, 4,566,268 shares of Common Stock were reserved and available for issuance pursuant to the Company’s Amended and Restated 2002 Stock Incentive Plan, 2004 Stock Incentive Plan, as amended, and 2004 Employee Stock Purchase Plan (the “ESPP”) (such plans, collectively, the “Company Stock Plans”), of which 2,523,927 shares of Common Stock were subject to outstanding options to acquire up to 837,050 purchase shares have been granted, for issuance to employees, consultants or directors of Common Stock from the Company pursuant to equity incentive agreements approved the Company Stock Plans or otherwise (other than rights under the ESPP) (together with any other stock options granted after July 21, 2006, the “Company Stock Options”). Other than as set forth in the preceding sentence, there are no other shares of Common Stock reserved and available for issuance. There is no capital stock of the Company held by the Board Company or any of Directorsits Subsidiaries. The All of the Series A Preferred Stock is reserved for issuance under the Shareholder Rights Plan and is the only Preferred Stock reserved or available for issuance. (d) Except as reflected in the Company’s audited financial statements as set forth in the Company SEC Documents, the per share exercise price of each Company Stock Option was not less than the fair market value of a share of Common Stock on the applicable grant date. (e) Except as set forth in the Company’s Public Filings, the Company’s Schedule 14A filed by the Registrant on April 28, 2006 (as amended on May 5, 2006), and the Company’s Schedule 14A filed by the Registrant on April 20, 2005 (in each case including the exhibits thereto), the Company is not a party to or subject to any agreement or understandingunderstanding relating to, and to the Company’s knowledge there is no agreement or understanding between any persons and/or entitiesPersons which relates to, which affects or relates to the voting of shares of capital stock of the Company or the giving of written consents with respect to any security or by a stockholder or director of the Company.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist prior to as of the Closing, date hereof consists of: : (i) Preferred Stock. 1,000,000 125,000,000 shares of Common Stock of which, as of December 31, 2013, (x) 63,754,582 shares are issued and 63,739,607 shares are outstanding and (y) 11,369,175 shares are reserved for issuance pursuant to the Company’s stock incentive plans, of which 8,712,895 shares are issuable upon the exercise of stock options outstanding on the date hereof and (ii) 5,000,000 shares of preferred stock, par value $.01 per share, of which 125,000 have been designated as Series A Junior Participating Preferred Stock, and of which 666,667 no shares have been designated Series A Preferred Stock (are issued and outstanding as of the "Series A Preferred Stock") date of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstanding. All of the issued and outstanding shares of Common Stock (A) have been duly authorized and validly issued, (B) are fully paid and nonassessable, non-assessable and have been (C) were issued in compliance with all applicable federal and state securities laws Laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims not in violation of any nature whatsoever. None preemptive rights. (b) All of the issued authorized shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholdersare entitled to one (1) vote per share. (iiic) Except for as described or referred to in Section 4.2(a) above and as provided in the conversion privileges Investor Agreement, as of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997date hereof, there are not not: (i) any outstanding any equity securities, options, warrants, rights (including conversion or preemptive rights) or other agreements for the purchase or acquisition from pursuant to which the Company of is or may become obligated to issue, sell or repurchase any shares of its capital stock; provided that the Company has reserved 1,000,000 shares, of which options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants stock or directors any other securities of the Company or (ii) except as set forth in the Investor Agreement, any restrictions on the transfer of capital stock of the Company other than pursuant to equity incentive agreements approved by state and federal securities Laws. (d) Except as provided in the Board of Directors. The Investor Agreement, the Company is not a party to or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates relating to the voting of shares of capital stock of the Company or the giving of written consents with respect to any security or by a stockholder or director of the Company. (e) The issuance of the Shares contemplated by this Agreement will also constitute the issuance of any associated rights under the Rights Agreement, dated July 13, 2005, by and between the Company and EquiServe Trust Company, N.A.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist prior to as of the Closing, date hereof consists of: : (i) Preferred Stock. 1,000,000 400,000,000 shares of Preferred StockCommon Stock of which, as of May 22, 2020, (A) 46,055,395 shares were issued and outstanding, (B) 13,156,900 shares were reserved for issuance pursuant to the Company’s equity incentive plans (including its stock purchase plan) described in the SEC Reports, and (C) 7,087,512 shares were issuable upon the exercise of stock options outstanding, and (ii) 10,000,000 shares of designated preferred stock, of which 666,667 no shares have been designated Series A Preferred Stock (are issued and outstanding as of the "Series A Preferred Stock") date of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstanding. All of the issued and outstanding shares of Common Stock (1) have been duly authorized and validly issued, (2) are fully paid and nonassessable, non-assessable and have been (3) were issued in compliance with all applicable federal and state securities laws Laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims not in violation of any nature whatsoever. None preemptive rights. (b) All of the issued authorized shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholdersare entitled to one (1) vote per share. (iiic) Except for as described or referred to in the conversion privileges SEC Reports, as of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997date hereof, there are not were not: (i) any outstanding any equity securities, options, warrants, rights (including conversion or preemptive rights) or other agreements for the purchase or acquisition from pursuant to which the Company of is or may become obligated to issue, sell or repurchase any shares of its capital stock; provided that the Company has reserved 1,000,000 shares, of which options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants stock or directors any other securities of the Company other than equity securities that may have been granted pursuant to its equity incentive agreements approved by plans, which plans are described in the Board SEC Reports; or (ii) any restrictions on the transfer of Directors. capital stock of the Company other than pursuant to federal or state securities Laws or as set forth in this Agreement. (d) The Company is not a party to or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates relating to the voting of shares of capital stock of the Company or the giving of written consents with respect to any security or by a stockholder or director of the Company. (e) The authorized capital of the Company as of the date hereof consists of (i) 400,000,000 shares of Common Stock of which, as of January 18, 2024, (A) 75,519,859 shares were issued and outstanding, (B) 9,368,303 shares were reserved for issuance pursuant to the Company’s equity incentive plans (including its stock purchase plan) described in the SEC Reports, and (C) 13,461,424 shares were issuable upon the exercise of stock options outstanding (D) 1,546,921 shares were issuable upon the vesting of outstanding restricted stock units and (ii) 10,000,000 shares of designated preferred stock, of which no shares are issued and outstanding as of the date of this Agreement. All of the issued and outstanding shares of Common Stock (1) have been duly authorized and validly issued, (2) are fully paid and non-assessable and (3) were issued in compliance with all applicable federal and state securities Laws and not in violation of any preemptive rights.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist immediately prior to the Closing, of: (ia) Preferred Stock. 1,000,000 10,000,000 shares of Preferred Stock, par value $0.01 (the "Preferred Stock"), of which 666,667 5,000,000 shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") and up to all of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of DesignationCompany's Restated Certificate. (iib) Common Stock. 10,000,000 30,000,000 shares of common stock stock, par value $0.01 ("Common Stock"), of which 3,362,877 200,000 shares are currently issued and outstanding. All of the issued . (c) The outstanding shares of Common Stock have been are owned by the stockholders and in the numbers specified in Exhibit C hereto. (d) The outstanding shares of Common Stock are all duly and validly authorized and validly issued, are fully paid and nonassessable, and have been were issued in compliance accordance with applicable federal the registration or qualification provisions of the Securities Act of 1933, as amended (the "Act") and any relevant state securities laws and are free and clear of all lienslaws, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholderspursuant to valid exemptions therefrom. (iiie) Except for (A) the conversion privileges of the Series A Preferred Stock to be issued under this Agreement Agreement, (B) the rights provided in Section of the Investors' Rights Agreement, (C) the conversion privileges of the Warrant to Purchase Preferred Stock issued in conjunction with this Agreement, and the right (D) currently outstanding options to purchase up to 133,333 677,000 shares of Common Stock granted to employees and other service providers pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Company's 1999 Stock Option Plan (the "Option Plan"), there are not outstanding any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock; provided that . In addition to the aforementioned options, the Company has reserved 1,000,000 shares, an additional 2,323,000 shares of which its Common Stock for purchase upon exercise of options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of be granted in the Company pursuant to equity incentive agreements approved by future under the Board of DirectorsOption Plan. The Company is not a party or subject to any agreement or understanding, and and, to the best of the Company's knowledge, there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director of the Company.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist prior to the Closing, consists of: (ia) Preferred Stock. 1,000,000 4,000,000 shares of Preferred Stock, par value $.001 (the "Preferred Stock"), of which 666,667 1,000,000 shares have been designated Series A Participating Preferred Stock (the "Series A Preferred Stock") of which 533,333 will be sold pursuant to this Agreement). The rights, privileges and preferences of the Series A Preferred Stock will be as are stated in the Amended and Restated Certificate of DesignationIncorporation (the "Restated Certificate"), filed with the Secretary of State of the State of Delaware on August 10, 1999. (iib) Common Stock. 10,000,000 26,000,000 shares of common stock ("Common Stock"), of which 3,362,877 7,000,000 shares are currently issued and outstanding. All of the issued . (c) The outstanding shares of Common Stock have been and Series A Preferred Stock are owned by the stockholders and in the numbers specified in Exhibit A hereto. (d) The outstanding shares of Common Stock are all duly and validly authorized and validly issued, are fully paid and nonassessablenon-assessable, and have been were issued in compliance with all applicable state and federal and state securities laws and are free and clear concerning the issuance of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholderssecurities. (iiie) Except for (i) the conversion privileges of the Series A Preferred Stock, (ii) dividends payable on the Series A Preferred Stock pursuant to be the Restated Certificate, (iii) a warrant, issued under this Agreement and the right to X.X. Xxxxxxxxx, Towbin, to purchase up 100,000 shares of Common Stock, at an exercise price of $6.00 per share, exercisable for a period of five years from the date granted, and (iv) currently outstanding options to 133,333 purchase 1,522,406 shares of Common Stock granted to employees or consultants pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Company's 1999 Stock Incentive Plan (the "Option Plan"), there are not outstanding any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock; provided that . In addition to the aforementioned options, the Company has reserved 1,000,000 shares, an additional 457,594 shares of which its Common Stock for purchase upon exercise of options to acquire up to 837,050 shares have been grantedbe granted in the future under the Option Plan. Except as set forth in the Amended and Restated Investors' Rights Agreement (as defined below) and the Amended and Restated Stockholders Agreement (as defined below), for issuance to employees, consultants or directors of the Company pursuant to equity incentive agreements approved by the Board of Directors. The Company is not a party or subject to any agreement or understanding, and and, to the Company's knowledge, there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director of the Company.

Capitalization and Voting Rights. (a) The As of July 21, 2006, the authorized capital of the Company consists, or will consist prior to the Closing, consists of: (i) Preferred Stock. 1,000,000 5,000,000 shares of Preferred Stock, par value $0.01 per share (the “Preferred Stock”), of which 666,667 100,000 shares have been designated Series A Junior Participating Preferred Stock (the "“Series A Preferred Stock") ”), none of which 533,333 will be sold pursuant to this Agreement. The rights, privileges are issued and preferences outstanding; and Table of the Series A Preferred Stock will be as stated in the Certificate of Designation.Contents (ii) Common Stock. 10,000,000 100,000,000 shares of common stock ("Common Stock"), of which 3,362,877 31,171,140 shares are currently issued and outstanding. All of the issued outstanding (including 630,000 shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, and have been issued in compliance with applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities subject to vesting or claims of any nature whatsoever. None of the issued shares of Common Stock has been issued other forfeiture restrictions or is owned or held in violation of any statutory preemptive rights of shareholdersrepurchase conditions) . (iiib) Except as set forth in Section 3.2(a) or Section 3.2(c), as of July 21, 2006, there are not issued, reserved for issuance or outstanding, and since such date there have been no issuances or deliveries by the conversion privileges Company or any of its Subsidiaries (other than the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 issuance of shares of Common Stock pursuant to subscription agreements received by the exercise of Company from various investors in response to that Private Placement Memorandum dated November Stock Options outstanding as of July 21, 19972006, there are not outstanding in accordance with their terms as in effect on July 21, 2006) of, any (i) shares of capital stock or other voting securities or equity interests of the Company, (ii) options, warrants, rights (including conversion or preemptive rights) , stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of Common Stock on a deferred basis or agreements for other rights that are linked to the purchase value of Common Stock or acquisition from the value of the Company or any of its Subsidiaries or any part thereof granted under the Company Stock Plans or otherwise), convertible or exchangeable securities, commitments, contracts, agreements or undertakings, in each case, pursuant to which the Company or any of its Subsidiaries is or may become obligated to (A) issue, deliver, sell or repurchase, or cause to be issued, delivered, sold or repurchased, any shares of its capital stock; provided that stock or other voting securities or equity interests of, or any security convertible or exercisable for or exchangeable into any capital stock or other voting securities or equity interests of, the Company has or any of its Subsidiaries or (B) issue, grant, extend or enter into any such option, warrant, right, convertible or exchangeable security, commitment, contract, agreement or undertaking; or (iii) bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote issued, reserved 1,000,000 sharesfor issuance or outstanding. There are no restrictions on the transfer of capital stock of the Company imposed by the Amended and Restated Certificate, the By-laws, any agreement to which the Company is a party, or any order of any court or any Governmental Authorities to which the Company is subject. There are no obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock, other voting securities or equity interests of the Company or any of its Subsidiaries. (c) As of July 21, 2006, 4,566,268 shares of Common Stock were reserved and available for issuance pursuant to the Company’s Amended and Restated 2002 Stock Incentive Plan, 2004 Stock Incentive Plan, as amended, and 2004 Employee Stock Purchase Plan (the “ESPP”) (such plans, collectively, the “Company Stock Plans”), of which 2,523,927 shares of Common Stock were subject to outstanding options to acquire up to 837,050 purchase shares have been granted, for issuance to employees, consultants or directors of Common Stock from the Company pursuant to equity incentive agreements approved the Company Stock Plans or otherwise (other than rights under the ESPP) (together with any other stock options granted after July 21, 2006, the “Company Stock Options”). Other than as set forth in the preceding sentence, there are no other shares of Common Stock reserved and available for issuance. There is no capital stock of the Company held by the Board Company or any of Directorsits Subsidiaries. The Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director All of the Series A Preferred Stock is reserved for issuance under the Shareholder Rights Plan and is the only Preferred Stock reserved or available for issuance. (d) Except as reflected in the Company's audited financial statements as set forth in the Company SEC Documents, the per share exercise price of each Company Stock Option was not less than the fair market value of a share of Common Stock on the applicable grant date.

Capitalization and Voting Rights. (a) The authorized capital As of the Company consistsdate hereof, or will consist prior to the Closing, equity capitalization of the Parent consists of: (i) Preferred 75,000,000 authorized shares of Common Stock. 1,000,000 , of which 7,541,111 shares are issued and outstanding and 466,893 will be issuable upon the exercise of outstanding options or settlement of restricted stock units; and (ii) 25,000,000 shares of Preferred Stock, 20,167 of which 666,667 shares have been are designated as “Series A Preferred Stock (the "Series A D Preferred Stock") ” and 0 of which 533,333 will be sold pursuant to this Agreement. The rights, privileges are issued and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designationoutstanding. (iib) Common Stock. 10,000,000 shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstanding. All of the issued shares of The outstanding Common Stock have has been duly authorized and validly issued, are is fully paid and nonassessablenon-assessable, and have been was issued in compliance accordance with applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities the registration or claims of any nature whatsoever. None distribution provisions of the issued shares of Common Stock has been issued applicable securities Laws or is owned or held in violation of any statutory preemptive rights of shareholderspursuant to valid exemptions therefrom. (iiic) Except for the conversion privileges As of the Series A Preferred Stock to be issued under this Agreement date hereof, except as set forth on Schedule 2.5(c) and the right to purchase up to 133,333 shares of Common Stock except pursuant to subscription agreements received the Stock Purchase Agreement, by and among the Company from various investors in response to that Private Placement Memorandum Parent, Penelope Mining LLC, and Minera Del Norte S.A. de C.V., dated November 21as of March 11, 19972015 (the “Stock Purchase Agreement”) there is no: (i) outstanding option, there are not outstanding any optionswarrant, warrantsright (contingent or other, including conversion, exchange, participation, right of first refusal, co-sale or pre-emptive rights (including conversion or preemptive rights regarding phantom stock or stock appreciation rights) or agreements agreement for the purchase or acquisition from the Parent or the Company of any Common Stock, Preferred Stock or any other shares or securities of the Parent or the Company, or any options, warrants or rights convertible into or exchangeable for any thereof; (ii) commitment by the Parent or the Company to issue shares, subscriptions, warrants, options, convertible or exchangeable securities or other such rights or to distribute to holders of its equity securities any evidence of indebtedness or assets; (iii) bond, debenture, note or other indebtedness of the Parent or the Company that entitles the holder thereof to vote (or is convertible into, or exchangeable or exercisable for, securities having the right to vote) with the Stockholders on any matter; (iv) outstanding contractual obligations, commitments or arrangements of any character (contingent or otherwise) that are binding on the Parent or the Company or any of their Subsidiaries to repurchase, redeem or otherwise acquire any shares of its capital stockstock of, or other equity or voting interests in, the Parent or the Company; provided that or (v) obligation, contingent or otherwise, by reason of any agreement to register the offer and sale or resale of any of the Parent’s or the Company’s capital stock or other equity or voting securities under the Securities Act. (d) Neither the Parent nor or the Company has reserved 1,000,000 sharesor intends to accelerate any rights or waive any conditions existing under any outstanding option, warrant, right or agreement (contingent or otherwise, including exercise, vesting, payment, conversion, exchange, participation, right of which options to acquire up to 837,050 first refusal, co-sale or pre-emptive rights or rights regarding phantom stock or stock appreciation rights) for the purchase or acquisition from the Parent or the Company of any Common Stock, Preferred Stock or any other shares have been granted, for issuance to employees, consultants or directors securities of the Company pursuant to equity incentive agreements approved by Parent or the Board of Directors. The Company, or any options, warrants or rights convertible into or exchangeable for any thereof. (e) Neither the Parent nor or the Company is not a party an “Issuing Corporation” as such term is defined in Section 78.3788 of the Nevada Revised Statutes by virtue of the fact that either it has less than 200 holders of record and/or it has less than 100 holders of record who have addresses in the State of Nevada, in either case, appearing on the stock ledger of the Parent or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director of the Company.

Capitalization and Voting Rights. (a) The authorized capital of -------------------------------- the Company consists, or will consist prior to the Closing, of: (i) Preferred Stock. 1,000,000 6,407,883 shares of Preferred Stock, --------------- par value $0.001 (the "Preferred Stock"), of which 666,667 4,306,883 shares have been designated Series A Convertible Preferred Stock (the "Series A Preferred Stock") ), all of which 533,333 are issued and outstanding, and 2,101,000 shares have been designated Series B Convertible Preferred Stock ("Series B Preferred Stock"), up to all of which will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A and Series B Preferred Stock will be as stated in the Certificate of DesignationRestated Certificate. (ii) Common Stock. 10,000,000 15,592,117 shares of common stock ------------ ("Common Stock"), par value $0.001 of which 3,362,877 4,688,333 shares are currently issued and outstanding. All of the issued shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, and have been issued in compliance with applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholders. (iii) The outstanding shares of Series A Preferred Stock and Common Stock are owned by the stockholders and in the numbers specified in Exhibit D hereto. --------- (iv) The outstanding shares of Series A Preferred Stock and Common Stock have been issued in accordance with the registration or qualification provisions of the 1933 Act and any relevant state securities laws or pursuant to valid exemptions therefrom. (v) Except for (A) the conversion privileges of the Series A and Series B Preferred Stock to be issued under this Agreement Stock, (B) the rights provided in Section 2.4 of the Investors' Rights Agreement, and the right (C) currently outstanding options to purchase up to 133,333 1,615,750 shares of Common Stock granted to employees pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Company's 1995 Stock Option Plan (the "Option Plan"), there are not outstanding any options, warrants, rights (including conversion or preemptive rightsrights and rights of first refusal) or agreements for the purchase or acquisition from the Company of any shares of its capital stock; provided that . In addition to the aforementioned options, the Company has reserved 1,000,000 shares, an additional 529,250 shares of which its Common Stock for purchase upon exercise of options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of be granted in the Company pursuant to equity incentive agreements approved by future under the Board of DirectorsOption Plan. The Company is not a party or subject to any agreement or understanding, and and, to the best of the Company's knowledge, there is no agreement or understanding between any persons and/or entities, which that affects or relates to the voting or giving of written consents with respect to any security or the voting by a director of the Company.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist prior to as of the Closing, date hereof consists of: : (i) Preferred Stock. 1,000,000 200,000,000 shares of Preferred StockCommon Stock of which, as of September 22, 2016, (x) 12,216,221 shares were issued and outstanding, (y) 3,164,267 shares were reserved for issuance pursuant to the Company’s stock incentive and employee stock purchase plans, of which 666,667 1,977,988 shares have been designated Series A Preferred were issuable upon the exercise or settlement of stock options or restricted stock units outstanding on such date, and (z) 57,173 shares were reserved for issuance upon the exercise of warrants to purchase Common Stock (that were outstanding on the "Series A Preferred Stock") of which 533,333 will be sold pursuant to this Agreement. The rightsdate hereof, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 shares of common stock ("Common Stock")preferred stock, par value $0.001 per share, of which 3,362,877 no shares are currently issued and outstandingoutstanding as of the date of this Agreement. All of the issued and outstanding shares of Common Stock (A) have been duly authorized and validly issued, (B) are fully paid and nonassessable, nonassessable and have been (C) were issued in compliance with all applicable federal and state securities laws Laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims not in violation of any nature whatsoever. None preemptive rights. (b) All of the issued authorized shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholdersare entitled to one (1) vote per share. (iiic) Except for as described or referred to in Section 4.2(a) above, as disclosed in the conversion privileges Company SEC Documents, or as provided in the Investor Agreement, as of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997date hereof, there are not not: (i) any outstanding any equity securities, options, warrants, rights (including conversion or preemptive rights) or other agreements for the purchase or acquisition from pursuant to which the Company of is or may become obligated to issue, sell or repurchase any shares of its capital stock; provided that the Company has reserved 1,000,000 shares, of which options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants stock or directors any other securities of the Company or (ii) any restrictions on the transfer of capital stock of the Company other than pursuant to equity incentive agreements approved by state and federal securities Laws. (d) Except as provided in the Board of Directors. The Investor Agreement or as disclosed in the Company SEC Documents, the Company is not a party to or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates relating to the voting of shares of capital stock of the Company or the giving of written consents with respect to any security or by a stockholder or director of the Company. (e) Except as provided in the Investor Agreement or disclosed in the Company SEC Documents, no Person has any right to cause the Company to effect the registration under the Securities Act of any securities of the Company. (f) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration.

Capitalization and Voting Rights. (a) The authorized capital of the Company consists, or will consist prior to the Closing, consists of: (ia) Preferred Stock. 1,000,000 10,000,000 shares of Preferred Stock, par value $0.0001 (the "Preferred Stock"), of which 666,667 5,500,000 shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") and up to all of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of DesignationCompany's Restated Certificate. (iib) Common Stock. 10,000,000 40,000,000 shares of common stock stock, par value $0.0001 ("Common Stock"), of which 3,362,877 19,460,000 shares are currently issued and outstanding. All of the issued The outstanding shares of Common Stock have been are all duly and validly authorized and validly issued, are fully paid and nonassessable, and have been were issued in compliance accordance with applicable federal the registration and qualification provisions of the Securities Act of 1933, as amended (the "Securities Act") and any relevant state securities laws and are free and clear of all lienslaws, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of pursuant to any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholdersexemptions therefrom. (iiic) Except for (A) the conversion privileges of the Series A Preferred Stock to be issued under this Agreement and Agreement, (B) the right rights provided in Section 2.3 of the Investors' Rights Agreement, (C) commitments or proposals to purchase issue up to 133,333 300,000 shares of Common Stock to certain service providers, and (D) currently outstanding options or commitments to purchase 1,780,000 shares of Common Stock granted to employees and other service providers pursuant to subscription agreements received the Company's 1999 Stock Option Plan (the "Option Plan") or other arrangement approved by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Board of Directors, there are not outstanding any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock; provided that the Company has reserved 1,000,000 shares, of which options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of the Company pursuant to equity incentive agreements approved by the Board of Directors. The Company is not a party or subject to any agreement or understanding, and and, to the Company's knowledge, there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director of the Company. (d) Except as set forth on the Schedule of Exceptions hereto, no stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any equity securities or right to purchase equity securities provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of any merger, consolidated sale of stock or assets, change of control or other similar transaction by the Company.

Capitalization and Voting Rights. (a) The authorized capital As of the date hereof, the equity capitalization of the Company consists, or will consist prior to the Closing, consists of: (i) Preferred Stock. 1,000,000 150,000,000 authorized shares of Preferred common stock par value $.0001 per share (the “Common Stock”), of which 666,667 89,582,502 shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") of which 533,333 will be sold pursuant to this Agreement. The rights, privileges are issued and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation.outstanding; and (ii) Common Stock. 10,000,000 9,810,000 shares of common preferred stock ("Common Stock")par value $.0001 per share, 134,800 of which 3,362,877 have been designated as “Series D Preferred Stock” (together with the Class AA Preferred Stock, the “Preferred Stock”) and 32,400 of which are currently issued and outstanding. All Each share of the issued shares Series D Preferred Stock is convertible into one share of Common Stock. (b) The outstanding Common Stock and Preferred Stock have been duly authorized and validly issued, are fully paid and nonassessablenon-assessable, and have been were issued in compliance accordance with applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities the registration or claims of any nature whatsoever. None distribution provisions of the issued shares of Common Stock has been issued applicable securities Laws or is owned or held in violation of any statutory preemptive rights of shareholderspursuant to valid exemptions therefrom. (iiic) Except for the conversion privileges As of the Series A Preferred Stock to be issued under this Agreement and the date hereof, except as set forth on Schedule 3.5(c) there is no: (i) outstanding option, warrant, right to purchase up to 133,333 shares (contingent or other, including conversion, exchange, participation, right of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21first refusal, 1997, there are not outstanding any options, warrants, co-sale or pre-emptive rights (including conversion or preemptive rights regarding phantom stock or stock appreciation rights) or agreements agreement for the purchase or acquisition from the Company of any Common Stock, Preferred Stock or any other shares or securities of the Company, or any options, warrants or rights convertible into or exchangeable for any thereof; (ii) commitment by the Company to issue shares, subscriptions, warrants, options, convertible or exchangeable securities or other such rights or to distribute to holders of its equity securities any evidence of indebtedness or assets; (iii) bond, debenture, note or other indebtedness of the Company that entitles the holder thereof to vote (or is convertible into, or exchangeable or exercisable for, securities having the right to vote) with the Stockholders on any matter; (iv) outstanding contractual obligations, commitments or arrangements of any character (contingent or otherwise) that are binding on the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of its capital stockstock of, or other equity or voting interests in, the Company; provided that or (v) obligation, contingent or otherwise, by reason of any agreement to register the offer and sale or resale of any of the Company’s capital stock or other equity or voting securities under the Securities Act. (d) After giving effect to the Preliminary Transaction, the outstanding equity capitalization of the Company has reserved 1,000,000 shareswill consist of: (i) 150,000,000 authorized shares of Common Stock, of which except as a result of the exercise of options to acquire up to 837,050 or warrants or the settlement of restricted stock units, in each case, as listed on Schedule 3.5(c), 14,930,418 shares will be issued and outstanding and 618,068 will be issuable upon the exercise of outstanding options or settlement of restricted stock units; and (ii) 50,000,000 shares of Preferred Stock, (x) 9,810,000 of which will have been granteddesignated as “Series D Preferred Stock” and 32,400 of which will be issued and outstanding, (y) 16,854,007 of which will have been designated as “Series AA-1 Preferred Stock” and none of which will be issued and outstanding and (z) 14,446,290 of which will have been designated as “Series AA-2 Preferred Stock” and none of which will be issued and outstanding. (iii) Each outstanding option, warrant, right (contingent or other, including conversion, exchange, participation, right of first refusal, co-sale or pre-emptive rights or rights regarding phantom stock or stock appreciation rights) or agreement for issuance to employeesthe purchase or acquisition from the Company of any Common Stock listed on Schedule 3.5(c), consultants shall become exercisable for, or directors convertible into, one-sixth of the Company pursuant number of shares of Common Stock for which it was exercisable or convertible prior to equity incentive agreements approved by the Board of Directors. Preliminary Transactions and for a price no less than six times the applicable price in effect immediately prior to the Preliminary Transactions. (e) The Company is has not a party and does not intend to accelerate any rights or subject to waive any conditions existing under any outstanding option, warrant, right or agreement (contingent or understandingotherwise, and there is no agreement including exercise, vesting, payment, conversion, exchange, participation, right of first refusal, co-sale or understanding between pre-emptive rights or rights regarding phantom stock or stock appreciation rights) for the purchase or acquisition from the Company of any persons and/or entitiesCommon Stock, which affects Preferred Stock or relates to the voting any other shares or giving of written consents with respect to any security or by a director securities of the Company, or any options, warrants or rights convertible into or exchangeable for any thereof.

Capitalization and Voting Rights. (a) The authorized capital of the Company consistsas of June 10, or will consist prior to the Closing, 2021 consists of: : (i) Preferred Stock. 1,000,000 125,000,000 shares of Preferred StockCommon Stock of which, as of the date of this Agreement, (x) 60,108,325 shares are issued and outstanding and (y) 13,808,200 shares are reserved for issuance pursuant to the Company’s stock incentive plans, of which 666,667 8,835,532 shares have been designated Series A Preferred Stock (are issuable upon the "Series A Preferred Stock") exercise of which 533,333 will be sold pursuant to this Agreement. The rights, privileges stock options outstanding on the date hereof and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 5,000,000 shares of common stock ("Common Stock")preferred stock, par value $0.01 per share, of which 3,362,877 no shares are currently issued and outstandingoutstanding as of the date of this Agreement. All of the issued and outstanding shares of Common Stock (A) have been duly authorized and validly issued, (B) are fully paid and nonassessable, non-assessable and have been (C) were issued in compliance with all applicable federal and state securities laws Laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims not in violation of any nature whatsoever. None preemptive rights. (b) All of the issued authorized shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholdersare entitled to one (1) vote per share. (iiic) Except for the conversion privileges of the Series A Preferred Stock as described or referred to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Section 4.2(a) above, there are not not: (i) any outstanding any equity securities, options, warrants, rights (including conversion or preemptive rights) or other agreements for the purchase or acquisition from pursuant to which the Company of is or may become obligated to issue, sell or repurchase any shares of its capital stock; provided that the Company has reserved 1,000,000 shares, of which options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants stock or directors any other securities of the Company or (ii) any restrictions on the transfer of capital stock of the Company other than pursuant to equity incentive agreements approved by state and federal securities Laws. (d) Except as disclosed in the Board of Directors. The Company SEC Documents, the Company is not a party to or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates relating to the voting of shares of capital stock of the Company or the giving of written consents with respect to any security or by a stockholder or director of the Company. (e) Except as disclosed in the Company SEC Documents, no Person has any right to cause the Company to effect the registration under the Securities Act of any securities of the Company. (f) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration.

Capitalization and Voting Rights. (ai) The authorized capital of the Company consistsas of the date hereof consists of: (A) 150,000,000 shares of Common Stock of which, or will consist prior as of the date of this Agreement, (1) 16,490,654 shares are issued and outstanding and (2) 3,056,253 shares are reserved for issuance pursuant to the Closing, of: (i) Preferred Stock. 1,000,000 Company’s stock incentive plans and outstanding warrants to purchase shares of Preferred Stockcommon stock, of which 666,667 1,514,940 shares have been designated Series A Preferred Stock are issuable upon the exercise of stock options and warrants outstanding on the date hereof and (the "Series A Preferred Stock"B) of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 5,000,000 shares of common stock ("Common Stock")preferred stock, par value $0.001 per share, of which 3,362,877 no shares are currently issued and outstanding. All of the issued and outstanding shares of Common Stock (x) have been duly authorized and validly issued, (y) are fully paid and nonassessable, non-assessable and have been (z) were issued in compliance with all applicable federal and state securities laws and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims not in violation of any nature whatsoever. None preemptive rights. (ii) All of the issued authorized shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholdersare entitled to one (1) vote per share. (iii) Except for the conversion privileges as described or referred to in Section 3(b)(i) above, as of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997date hereof, there are not not: (A) any outstanding any equity securities, options, warrants, rights (including conversion or preemptive rights) or other agreements for the purchase or acquisition from pursuant to which the Company of is or may become obligated to issue, sell or repurchase any shares of its capital stock; provided that stock or any other securities of the Company or (B) any restrictions on the transfer of capital stock of the Company other than pursuant to state and federal securities laws. (iv) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has reserved 1,000,000 sharestaken no action designed to, of or which options to acquire up its knowledge is likely to 837,050 shares have been grantedthe effect of, for issuance to employees, consultants or directors terminating the registration of the Common Stock under the Exchange Act nor has the Company pursuant to equity incentive agreements approved by received any notification that the Board of Directors. The Company SEC is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates to the voting or giving of written consents with respect to any security or by a director of the Company.contemplating terminating such registration

Capitalization and Voting Rights. (a) The As of the Signing Date, the authorized capital of the Company consists, or will consist prior to the Closing, consists of: : (i) Preferred Stock. 1,000,000 120,000,000 shares of Preferred StockCommon Stock of which, (A) 32,601,748 shares are issued and outstanding, (B) 4,886,021 shares are issuable upon the exercise of outstanding stock options or upon the settlement of outstanding equity awards issued pursuant to the 2014 Stock Option and Grant Plan or the 2015 Stock Option and Incentive Plan, (C) 2,259,224 shares are reserved for future issuance pursuant to the 2015 Stock Option and Incentive Plan, and (D) 1,289,093 shares are reserved for future issuance pursuant to the 2015 Employee Stock Purchase Plan, as amended to date and as the same may be amended and/or restated from time to time, and (ii) 5,000,000 shares of preferred stock, par value $0.001 per share, of which 666,667 no shares have been designated Series A Preferred Stock (the "Series A Preferred Stock") of which 533,333 will be sold pursuant to this Agreement. The rights, privileges and preferences of the Series A Preferred Stock will be as stated in the Certificate of Designation. (ii) Common Stock. 10,000,000 shares of common stock ("Common Stock"), of which 3,362,877 are currently issued and outstanding. The Company is also party to the Sales Agreement pursuant to which the Company may issue and sell shares of its Common Stock having an aggregate offering price of up to $75,000,000 through Xxxxx and Company, LLC, from time to time, in “at-the-market” offerings or certain negotiated transactions. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, issued and are fully paid and nonassessablenon-assessable, and have been were issued in compliance with applicable federal and state securities laws Laws, and are free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholder agreements, equities or claims of not subject to any nature whatsoever. None of the issued shares of Common Stock has been issued or is owned or held in violation of any statutory preemptive rights of shareholderspre-emptive rights. (iiib) Except for as described or referred to in Section 4.2(a) above and as provided in the conversion privileges Investor Agreement, as of the Series A Preferred Stock to be issued under this Agreement and the right to purchase up to 133,333 shares of Common Stock pursuant to subscription agreements received by the Company from various investors in response to that Private Placement Memorandum dated November 21, 1997Signing Date, there are not no outstanding any options, warrants, rights (including conversion including, without limitation, pre-emptive rights), warrants or preemptive rights) options to acquire, or agreements for the purchase instruments convertible into or acquisition from the Company of exchangeable for, any shares of its capital stock; provided that stock or other equity interest in the Company has reserved 1,000,000 sharesCompany, or any contract, commitment, agreement, understanding or arrangement of which options to acquire up to 837,050 shares have been granted, for issuance to employees, consultants or directors of the Company pursuant to equity incentive agreements approved by the Board of Directors. The Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any persons and/or entities, which affects or relates kind relating to the voting or giving issuance of written consents with respect to any security or by a director capital stock of the Company, any such convertible or exchangeable securities or any such rights, warrants or options.