Common use of Capitalization Matters Clause in Contracts

Capitalization Matters. 3.3.1. Immediately prior to the Initial Closing, the total authorized capital stock of the Company, consists of: (a) 100,000,000 shares of Common Stock, of which 19,363,539 shares are issued and outstanding; and (b) 5,000,000 shares of Preferred Stock, of which none are issued and outstanding. 3.3.2. Immediately prior to the Initial Closing, the authorized, issued and outstanding capital stock of the Company is as set forth in Exhibit D hereto and (a) all issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. Except for the securities issued or issuable pursuant to this Agreement, (i) there are no outstanding securities of the Company which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company entitled to preemptive or similar rights arising out of any agreement or understanding with the Company, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem any of its outstanding capital stock, (ii) the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (iii) except as set forth in Exhibit D there are no outstanding options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue any shares of capital stock, or secur­ities or rights convertible or exchangeable into shares of capital stock. Except as otherwise required by law, there are no restrictions upon the voting or transfer of any of the shares of capital stock of the Company pursuant to its Organizational Documents or any agreement or other instruments to which it is a party or by which it is bound. The issuance and sale of the Units as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Purchasers and the Placement Agent) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any outstanding security. There are no proxies, stockholder agreements, or any other agreements between the Company and any stockholder of the Company or, to the knowledge of the Company, among any of the stockholders of the Company, including agreements relating to the voting, transfer, redemption or repurchase of any securities of the Company. The Company does not have any outstanding shareholder purchase rights or “poison pill” or any similar arrangement in effect giving any person the right to purchase any equity interest in the Company upon the occurrence of certain events. 3.3.3. The shares of Common Stock and Warrants comprising the Units are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Encumbrances other than restrictions on transfer provided for in the Transaction Documents. The Warrant Shares, when issued and paid for in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Encumbrances imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Company has reserved a sufficient number of shares for issuance of the shares of Common Stock and Warrant Shares, free and clear of all Encumbrances, except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws.

Capitalization Matters. 3.3.1. Immediately prior to the Initial Closing and any Subsequent Closing, if and as applicable, the total authorized capital stock of the Company, consists of: (a) 100,000,000 490,000,000 shares of Common Stock, of which 19,363,539 shares are issued and outstandingcommon stock; and (b) 5,000,000 10,000,000 shares of Preferred Stockpreferred stock, of which none are issued and outstanding. 3.3.2. Immediately prior to the Initial Closing and any Subsequent Closing, if and as applicable, the authorized, issued and outstanding capital stock of the Company is is, as set forth in Exhibit D hereto on Schedule 3.3.2 and (a) all issued and outstanding shares of capital stock of the Company (a) have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were were, in all material respects, issued in compliance with all applicable state and federal laws concerning the issuance of securities. Except for the securities issued or issuable pursuant to this Agreementas set forth on Schedule 3.3.2, (i) there are no outstanding securities of the Company which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company entitled to preemptive or similar rights arising out of any agreement or understanding with the CompanyCompany by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem any a Securities of its outstanding capital stock, the Company (ii) the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (iii) except as set forth in Exhibit D on Schedule 3.3.2, there are no outstanding options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue any shares of capital stockstock of the Company, or secur­ities or rights convertible or exchangeable into shares of capital stockstock of the Company. Except as otherwise required by law, including any federal securities rules and regulations, there are no restrictions upon the voting or transfer of any of the shares of capital stock of the Company pursuant to its Organizational Documents or other governing documents or any agreement or other instruments to which it the Company is a party or by which it is bound. The issuance and sale of the Units Securities as contemplated hereby will not obligate the Company to issue shares of Common Stock common stock or other securities to any other person (other than the Purchasers and the Placement AgentPurchaser) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any outstanding securitySecurities. There are no proxies, stockholder agreements, or any other agreements between the Company and any stockholder securityholder of the Company or, to the knowledge of the Company, among any of the stockholders securityholders of the Company, including agreements relating to the voting, transfer, redemption or repurchase of any securities of the Company. The Company does not have any outstanding shareholder purchase rights or “poison pill” or any similar arrangement in effect giving any person the right to purchase any equity interest in the Company upon the occurrence of certain events. 3.3.3. The shares of Common Stock and Warrants comprising the Units are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Encumbrances other than restrictions on transfer provided for in the Transaction Documents. The Warrant Shares, when issued and paid for in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Encumbrances imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Company has reserved a sufficient number of shares for issuance of the shares of Common Stock and Warrant Shares, free and clear of all Encumbrances, except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws.

Capitalization Matters. 3.3.1. Immediately prior to the Initial Closing and any Subsequent Closing, if and as applicable, the total authorized capital stock of the Company, consists of: (a) 100,000,000 200,000,000 shares of Common Stock, of which 19,363,539 shares 66,263,600 are issued and outstandingoutstanding as of the date of the Memorandum; and (b) 5,000,000 10,000,000 shares of Preferred Stock, of which none are issued and outstanding. 3.3.2. Immediately prior to the Initial Closing and any Subsequent Closing, if and as applicable, the authorized, issued and outstanding capital stock of the Company is is, as set forth in Exhibit D hereto on Schedule 3.3.2 and (a) all issued and outstanding shares of capital stock of the Company (a) have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were were, in all material respects, issued in compliance with all applicable state and federal laws concerning the issuance of securities. Except for the securities issued or issuable pursuant to this Agreementas set forth on Schedule 3.3.2, (i) there are no outstanding securities of the Company any Protea Entity which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company any Protea Entity entitled to preemptive or similar rights arising out of any agreement or understanding with any Protea Entity by virtue of any of the CompanyTransaction Documents, and there are no contracts, commitments, understandings or arrangements by which the Company any Protea Entity is or may become bound to redeem a security of any of its outstanding capital stock, Protea Entity (ii) the Company does not have no Protea Entity has any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (iii) except as set forth in Exhibit D on Schedule 3.3.2, there are no outstanding options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company any Protea Entity or contracts, commitments, understandings, or arrangements by which the Company any Protea Entity is or may become bound to issue any shares of capital stockstock of any Protea Entity, or secur­ities securities or rights convertible or exchangeable into shares of capital stockstock of any Protea Entity. Except as otherwise required by law, including any federal securities rules and regulations, there are no restrictions upon the voting or transfer of any of the shares of capital stock of the Company any Protea Entity pursuant to its Organizational Documents or other governing documents or any agreement or other instruments to which it any Protea Entity is a party or by which it is bound. The Except as set forth on Schedule 3.3.2, the issuance and sale of the Units as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Purchasers and the Placement AgentPurchaser) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any outstanding security. There are no proxies, stockholder agreements, or any other agreements between the Company any Protea Entity and any stockholder securityholder of the Company such Protea Entity or, to the knowledge of the Company, among any securityholders of the stockholders of the Companyany Protea Entity, including agreements relating to the voting, transfer, redemption or repurchase of any securities of the Companysuch Protea Entity. The Company does not have No Protea Entity has any outstanding shareholder purchase rights or “poison pill” or any similar arrangement in effect giving any person the right to purchase any equity interest in the Company such Protea Entity upon the occurrence of certain events. 3.3.3. The shares of Common Preferred Stock and Warrants comprising the Units are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Encumbrances other than restrictions on transfer provided for in the Transaction Documents. The Conversion Shares, when issued and paid for in accordance with the terms of the Preferred Stock, will be validly issued, fully paid and nonassessable, free and clear of all Encumbrances imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Warrant Shares, when issued and paid for in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Encumbrances imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Company has reserved a sufficient number of shares for issuance of the shares of Common Stock Preferred Stock, Conversion Shares, and Warrant Shares, free and clear of all Encumbrances, except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws.