Common use of Capitalization of the Company Clause in Contracts

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock35,000,000 Common Shares, par value $0.001 0.01 per share, of which 47,898,271 11,652,393 Common Shares were issued and outstanding as of the date of this AgreementApril 23, 2004, and (b) 10,000,000 1,000,000 shares of preferred stock, par value $0.001 0.01 per share, none 100,000 shares of which have been designated as Series A Junior Participating Preferred Stock, and none of which are issued or are and outstanding as of on the date of this Agreementhereof. As of the date of this AgreementApril 23, 2004, (i) 3,794,346 1,007,239 Common Shares were issued and outstanding under remained available for issuance pursuant to the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 2,467,832 Common Shares were subject to outstanding Options, and (iiiii) no 1,635,060 Common Shares were held by the Company in its treasury. Except for as set forth in this Section 3.04 and the foregoingpreferred stock purchase rights (the “Rights”) issued pursuant to the Rights Plan, there are no not any options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Common Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there . There are no outstanding obligations of the Company or any of its Subsidiaries subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except There are no contracts, commitments or agreements relating to the voting, purchase or sale of Common Shares (i) between or among the Company and any of its stockholders except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger Transactions at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholdersMerger Sub, or (ii) to the Company’s knowledge, and except as specifically disclosed in any forms, reports, statements or schedules filed by a third third-party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed evidencing options granted thereunder permit do not prohibit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 2.02(b) of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted SharesOptions, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.72.02(b). All outstanding Common Shares and all Options granted pursuant to the Stock Option Plans were issued in compliance with all applicable federal and state securities Laws.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were the Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and outstanding under the Company Stock Option Plans as restricted stock awards are fully paid and remain non-assessable and are not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor 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 or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the Company owns 50.4% of the issued and outstanding JEH LLC Units (the “JEH LLC Units”) (without giving effect to the transactions contemplated by this Agreement); such JEH LLC Units have been duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Act (the “Delaware LLC Act”), as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and are owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as date hereof (the termination of the Stock Option Plans as contemplated by Section 2.7 of this “Credit Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7”).

Capitalization of the Company. (a) The authorized capital stock of the Company consists solely of sixty million (a60,000,000) 100,000,000 shares of common stock, par value $0.001 per sharepar value, of which 47,898,271 Shares were issued and outstanding which, as of the date of this Agreementhereof, (i) three million nine hundred fifty one thousand nine hundred fifty two (3,951,952) Shares are issued and outstanding, (ii) seven hundred eighty five thousand five hundred twenty five (785,525) are subject to outstanding Company Options to acquire Shares, (iii) fifty five thousand three hundred nineteen (55,319) are subject to outstanding warrants to acquire Shares (such warrants, the “Company Warrants”), and (biv) 10,000,000 shares of preferred stockone hundred eighty thousand five hundred fifty three (180,553) are subject to convertible notes to acquire Shares (such notes, par value $0.001 per share, none of which the “Convertible Notes”) based on the conversion price currently in effect and accrued and unpaid interest on the Convertible Notes through the date hereof. All issued and outstanding Shares (i) have been duly authorized, (ii) are validly issued, fully-paid, and non-assessable, and (iii) were not issued in violation of any preemptive right, subscription right, right of first refusal, or are outstanding applicable Law. Other than the Company Options, the Company Warrants, the Convertible Notes or as of the date of this Agreement. As of the date of otherwise listed on Schedule 4.2(a), and except for this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no outstanding options, warrants, rights, calls, subscriptions, convertible securities or other rightssecurities, or other agreements Contracts obligating the Company to issue, transfer transfer, sell, repurchase, or sell redeem any shares of capital its Equity Interests, (ii) there are no outstanding or authorized stock ofappreciation, restricted stock, phantom equity, or similar rights with respect to the Company, and (iii) there are no voting trusts, stockholder agreements, proxies, or other equity interests in, Contracts or understandings in effect to which the Company is a party with respect to the voting or transfer of any of the Company’s Equity Interests. (b) Schedule 4.2(b) sets forth a complete and accurate list of all the Company’s Subsidiaries and ownership thereof. All of the issued and outstanding Shares Equity Interests of each Company Subsidiary are duly authorized, validly issuedissued and are directly owned of record by the Company or a Subsidiary of the Company, fully paidfree and clear of any Liens (other than Permitted Liens). None of the Equity Interests of the Company’s Subsidiaries were issued in violation of any option, nonassessable and free call option, right of first refusal, right of first offer, preemptive rights, rights subscription rights, or any similar right of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of any equityholder. Neither the Company or nor any of its Subsidiaries to repurchaseowns, redeem directly or otherwise acquire indirectly, any shares of capital stock of, or Equity Interest in any Person other equity interests in, than the Company’s Subsidiaries. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among Neither the Company or its Subsidiaries and nor any of its stockholders, Subsidiaries directly or indirectly control (iias such term is defined in the definition of “Affiliate”) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7Person.

Capitalization of the Company. The authorized capital stock of the Company consists solely of of: (a) 100,000,000 1,000,000 shares of common stock, par value $0.001 per shareCommon Stock, of which 47,898,271 Shares were issued and outstanding 75 shares will be, as of the date of this AgreementInitial Closing, duly and validly issued, outstanding, fully paid, and nonassessable; (b) 10,000,000 1,012,000 shares of designated preferred stock, par value $0.001 .01 per share, of which (i) 506,000 shares have been designated as Series A Convertible Participating Preferred Stock, of which 199,000 shares will be, as of the Initial Closing, duly and validly issued, outstanding, fully paid, and nonassessable and (ii) 506,000 shares have been designated as Redeemable Preferred Stock, none of which have been issued or are will be outstanding as of the date Initial Closing; and (c) 300,000 shares of this Agreementundesignated preferred stock, par value $.01 per share. Except for 62,525 shares of Common Stock reserved for issuance under a Stock Option Plan to be adopted by the Board of Directors of the Company and to contain the terms set forth on Exhibit A hereto (the "Stock Option Plan") and 5,682 shares of Common Stock issuable upon the exercise of warrants issued to the Alta Investors in connection with the Alta Loans (the "Warrants" and any shares of Common Stock or any successor class of capital stock of the Company hereafter issued or issuable upon exercise of the Warrants, the "Warrant Shares") and except as otherwise disclosed in Schedule 2.4, the Company has not issued any other shares of its capital stock and there are no outstanding warrants, options or other rights to purchase or acquire any of such shares, nor any outstanding securities convertible into such shares or outstanding warrants, options or other rights to acquire any such convertible securities. As of the date Initial Closing, all of the outstanding shares of capital stock of the Company will have been offered, issued, sold and delivered in compliance with applicable federal and state securities laws. The Series A Preferred Shares and the Common Shares have been duly and validly authorized and, when delivered and paid for pursuant to this Agreement, (i) 3,794,346 will be validly issued, fully paid and nonassessable. The Series A Preferred Shares were issued are initially convertible into 406,000 shares of Redeemable Preferred Stock and outstanding 406,000 shares of Common Stock representing 85.6% of the Common Stock of the Company on a fully-diluted basis after giving effect to the issuance of the 62,525 shares reserved for issuance under the Company Stock Option Plans Plan and the exercise, exchange or conversion of any other securities exercisable or exchangeable for or convertible into Common Stock. The relative rights, preferences, restrictions and other provisions relating to the Series A Preferred Stock and the Redeemable Preferred Stock are as restricted stock awards set forth in Exhibit B attached hereto. The Company has authorized and remain subject to vesting restrictions, (ii) 2,869,061 reserved for issuance upon conversion of the Series A Preferred Shares were subject to outstanding Optionsnot less than 406,000 shares of Redeemable Preferred Stock and 406,000 shares of Common Stock, and (iii) no the Conversion Shares were held by issuable upon such conversion will be, when issued in accordance with the Certificate of Incorporation of the Company, duly and validly authorized and issued, fully paid and nonassessable. The Company has authorized and reserved for issuance upon exercise of the Warrants not less than 5,682 shares of Common Stock, and the Warrant Shares issuable upon such exercise will be, when issued in its treasuryaccordance with the Certificate of Incorporation of the Company, duly and validly authorized and issued, fully paid and nonassessable. Except for as set forth in the foregoingStockholders' Agreement referred to in Section 3.5 hereof, there are no options, warrants, calls, subscriptions, convertible securities preemptive rights or other rights, rights of first refusal with respect to the issuance or other agreements obligating the Company to issue, transfer or sell any shares sale of capital stock of, or other equity interests in, the Company's capital stock, other than rights to which holders of the Securities are entitled as set forth in Section 4.11 hereof. All issued and outstanding Shares are duly authorizedNo officer, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal director or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations employee of the Company or any of its Subsidiaries other person or entity has, claims to repurchase, redeem have or otherwise acquire has any shares of right to claim to have any interest in the Company's capital stock of, other than as disclosed in Schedule 2.4 or other equity interests in, as an Investor hereunder. There are no restrictions on the transfer of the Company's capital stock other than those arising from federal and state securities laws or under this Agreement or the Stockholders' Agreement referred to in Section 3.5 hereof. Except for as set forth in the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or PurchaserStockholders' Agreement, there are no contractsrights, commitments obligations or agreements relating to restrictions on the voting, purchase or sale voting of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s 's capital stock or the registration of such capital stock for offering to the public pursuant to the Securities Act of 1933, as amended (the "Securities Act"). The shares of the capital stock outstanding before giving effect to the transactions contemplated by this Agreement (which consist of 1,000 shares of Common Stock) are held of record and beneficially by the Founder and will be redeemed by the Company at the Initial Closing. After giving effect to the transactions contemplated by this Agreement, the Investors will be the only stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares Company has no subsidiaries or investments in any other corporation or business organization. Except as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Sharesset forth in Schedule 2.4, the Company’s stockholdersCompany does not own or have any direct or indirect interest in, a loan or advance to, or control over any corporation, partnership, joint venture or other party to effect such acceleration, cancellation and termination except for the action entity of the Company Board described in Section 2.7any kind.

Capitalization of the Company. (a) The Company’s authorized capital stock consists of the Company consists solely of (a) 100,000,000 3,000,000,000 shares of common stock, par value $0.001 per share0.001, of which 47,898,271 Shares were 248,889,621 shares are issued and outstanding as of the date of this Agreementoutstanding, and (b) 10,000,000 50,000,000 shares of preferred stock, par value $0.001 per share0.001, of which 1,000 shares are designated Series A Preferred Stock, none of which have been are issued or are outstanding and outstanding, and 1 share of Series C Preferred Stock is designated, issued and outstanding. To the knowledge of the Company, based on the shareholder report provided by the Company’s transfer agent, as of the date set forth therein,All shares of this Agreement. As Common Stockare owned of record by the shareholders in the amounts set forth in the shareholder’s list provided by the Company’s transfer agent attached hereto as Exhibit C. There are no outstanding dividends, whether current or accumulated, due or payable on any of the date capital stock of the Company. (b) Seller is the legal owner, and has good and marketable title (beneficially and of record) to all of the Shares. The Shares, when sold to the Buyer pursuant to this Agreement, will be: (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, and outstanding; (ii) fully paid, nonassessable non-assessable, and free of preemptive rights; and (iii) free and clear of any and all pledges, rights claims, restrictions, charges, liens, security interests, encumbrances, or other interests of refusal or similar rights or limitations, and, except for third parties of any nature whatsoever. As of the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, date hereof: (i) there are no outstanding obligations options, warrants, rights, commitments, or agreements of any kind for the issuance or sale of, or outstanding securities convertible into, any additional shares of capital stock of any class of the Company, except for outstanding warrants and convertible notes disclosed in the SEC Reports (defined below), (ii) there are no voting trusts, voting agreements, proxies, or other agreements, instruments, or undertakings with respect to the voting of any Company securities to which the Company or any of its Subsidiaries to repurchase, redeem shareholders is a party; and (iii) there are no restrictions on transfer of any Company securities except for restrictions imposed by applicable laws or otherwise acquire any shares by the express terms of capital stock of, or other equity interests in, the Companythis Agreement. Except for as disclosed in the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or PurchaserSEC Reports, there are no contracts, commitments commitments, understandings or agreements relating to the voting, purchase or sale of Shares (i) between or among arrangement by which the Company is bound to issue additional registered capital, share capital or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7securities.

Capitalization of the Company. The (a) Except as set forth on Section 4.9(a) of the Company Disclosure Letter, as of the date of this Agreement, the authorized capital stock of the Company consists solely of (a) 100,000,000 10,000,000 shares of common stock, par value $0.001 per shareCompany Common Stock, of which 47,898,271 Shares were 10,000,000 shares are issued and outstanding as of the date of this Agreement, and there are no other authorized equity interests of the Company that are issued and outstanding. Except as set forth on Section 4.9(a) of the Company Disclosure Letter, all of the issued and outstanding shares of Company Common Stock (w) have been duly authorized and validly issued and are fully paid and non-assessable; (x) have been offered, sold and issued in compliance in all material respects with applicable Law, including federal and state securities Laws, and all requirements set forth in (1) the Governing Documents of the Company and (2) any other applicable Contracts (including the Company Stockholders Agreement) governing the issuance of such securities; (y) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, the Governing Documents of the Company or any Contract to which the Company is a party or otherwise bound (including the Company Stockholders Agreement); and (z) are free and clear of any Liens other than Liens imposed under the Governing Documents of the Company or Permitted Liens. (b) 10,000,000 As of the date of this Agreement, Company Options to purchase 623,966 shares of preferred stockCompany Common Stock (excluding any Company Options that have been granted pursuant to the formula as described in Section 4.9(b) of the Company Disclosure Letter), par value $0.001 per share, none of which have been issued or 68,966 are exercisable as of the date of this Agreement (including pursuant to an early exercise feature). Section 4.9(b) of the Company Disclosure Letter includes a true and complete list of each Company Option that is outstanding as of the date of this Agreement. As of , including the date of this AgreementEmployee, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities consultant or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations director of the Company or any of its Subsidiaries who holds such Company Option, the number of shares of Company Common Stock subject thereto, the vesting schedule thereof (including whether the Company Option is subject to repurchasean early exercise feature) and the exercise price thereof. All Company Options are evidenced by award agreements in substantially the forms previously made available to Acquiror, and no Company Options are subject to terms that are materially different from those set forth in such forms. Each Company Option was validly issued and properly approved by the Company Board. (c) Except as set forth in Section 4.9(b) of the Company Disclosure Letter, the Company has not granted any outstanding subscriptions, options, restricted stock units, stock appreciation rights, warrants, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for shares of Company Common Stock, any other equity interests or equity-related awards, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional shares, the sale of treasury shares or other equity interests, or for the repurchase or redemption of shares or other equity interests of the Company or the value of which is determined by reference to shares or other equity interests of the Company, and there are no voting trusts, proxies or agreements of any kind which may obligate the Company to issue, purchase, register for sale, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7Common Stock.

Capitalization of the Company. (a) The authorized capital stock of the Company consists solely of (a) 100,000,000 25,000,000 shares of common stock, par value $0.001 1.00 per shareshare (“Company Common Stock”), of which 47,898,271 Shares were 3,662,416 shares (the “Shares”) are issued and outstanding as of the date of this Agreement, and (b) 10,000,000 107,834 shares of preferred stock, par value $0.001 per share, none of which have been issued or Company Common Stock are outstanding held as treasury shares as of the date of this Agreement. All issued and outstanding shares of Company Common Stock are certificated. Except for Trust Account Shares and DPC Shares, no shares of Company Common Stock are held by the Company’s Subsidiaries. As of the date hereof, there are 100,113 shares of this Agreement, Company Common Stock reserved for issuance upon exercise of outstanding Stock Options. All issued and outstanding shares of Company Common Stock (i) 3,794,346 Shares were have been duly and validly authorized and issued and outstanding under are fully paid and non-assessable, except as provided in Section 180.0622(2)(b) of the WBCL (such section, including judicial interpretations thereof and Section 180.40(6), its predecessor statute, are referred to herein as “Section 180.0622(2)(b) of the WBCL”); (ii) have not been issued in violation of any preemptive rights of any current or past Shareholder, with no personal liability attaching to the ownership thereof; and (iii) have been issued in material compliance with all applicable Laws. Except as set forth in this Section 4.04 or Schedule 4.04(a) of the Disclosure Statement, there are no shares of capital stock or other securities of the Company authorized or issued and outstanding. (b) Except for the Company Stock Option Plans as restricted (which includes director and employee stock awards and remain subject to vesting restrictionsoptions), (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoingdoes not have and is not bound by any outstanding subscriptions, there are no options, warrants, calls, subscriptionscommitments, convertible securities rights agreements or other rights, or other agreements obligating of any character calling for the Company to issue, transfer deliver or sell sell, or cause to be issued, delivered or sold, any shares of capital stock ofCompany Common Stock or any other equity security of the Company or any Subsidiary of the Company or any securities convertible into, exchangeable for or representing the right to subscribe for, purchase or otherwise receive any shares of Company Common Stock or any other equity security of the Company or any Subsidiary of the Company or obligating the Company or any such Subsidiary to grant, extend or enter into any such subscriptions, options, warrants, calls, commitments, rights agreements or other equity interests in, similar agreements. Except as set forth on Schedule 4.04(b)(i) of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderDisclosure Statement, there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary of the Company. Schedule 4.04(b)(ii) of the Disclosure Statement sets forth as of the date hereof, and will set forth as of the Closing Date, (i) the name of each holder of a Stock Option, (ii) the date each Stock Option was granted, (iii) the number of shares subject to each such Stock Option, (iv) the expiration date of each such Stock Option, and (v) the price at which each such Stock Option may be exercised. Each Stock Option (w) was granted in material compliance with all applicable Laws and all of the terms and conditions of the Company Stock Option Plan pursuant to which it was issued, (x) that is currently outstanding and vested has an exercise price per share of Company Common Stock equal to or greater than the fair market value of a share of Company Common Stock on the date of such grant, (y) that is currently outstanding and vested has a grant date identical to the date on which the Board of Directors of the Company or compensation committee actually awarded such Stock Option, and (z) qualifies for the tax and accounting treatment afforded to such Stock Option in the Company’s tax returns and the Company Reports, respectively. There are no Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent, or which are otherwise subject to any right or obligation of repurchase or redemption on the part of the Company. Except for as set forth on Schedule 4.04(b)(iii) of the Stock Option Plans and Disclosure Statement, to the agreements executed thereunder and any support agreements entered into in connection with Knowledge of the Offer and the Merger at the request of Parent or PurchaserCompany, there are no contracts, agreements or other commitments in force or agreements effect restricting the transfer of shares of Company Common Stock, relating to the votingmanner in which shares of Company Common Stock can be voted or otherwise affecting any attribute of ownership of shares of Company Common Stock. (c) To the Company’s Knowledge, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any on Schedule 4.04(c) of the Company’s stockholders Disclosure Statement, no shares of Company Common Stock are issued and outstanding to a Person that is the beneficial owner, directly or between any indirectly, of five percent (5%) or more of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action voting power of the Company Board described in Common Stock. (d) The Company Common Stock is duly registered under Section 2.712(g) of the Exchange Act.

Capitalization of the Company. The After giving effect to the Reorganization, the Company will have an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were have been duly and validly authorized and issued and outstanding as of the date of this Agreement, are fully paid and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or non-assessable and are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor 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 or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and, after giving effect to the Reorganization, the Company will own [·]% of the issued and outstanding JEH LLC Units (or such additional amount to reflect the exercise of the Underwriters’ option to purchase Option Shares pursuant to Section 2 hereof); such JEH LLC Units will be duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and will be owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration date hereof (the “Credit Agreement”), and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this that certain Second Lien Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Energy Capital, Inc., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and do not require Sole Bookrunner, and the consent or approval of lenders thereto, as amended through the holders of date hereof (the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7“Term Loan”).

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, the authorized share capital of the Company is $1,112, divided into 1,000 ordinary shares with nominal or par value of $1.00 each and 112 non-voting ordinary shares with nominal or par value of $1.00 each. The number and class (iif applicable) 3,794,346 Shares were of all issued and outstanding under Equity Securities of the Company Stock Option Plans as restricted stock awards of the date of this Agreement are set forth on Section 4.06(a) of the Company Disclosure Letter. All of the issued and remain subject to vesting restrictionsoutstanding Equity Securities of the Company (w) have been duly authorized and validly issued and are fully paid and non-assessable; (x) have been offered, (ii) 2,869,061 Shares were subject to outstanding Optionssold and issued in compliance with applicable Law, including Securities Laws, and all requirements set forth in (iii1) no Shares were held by the Organizational Documents of the Company and (2) any other applicable Contracts governing the issuance of such Equity Securities; (y) are not subject to, nor have they been issued in its treasury. Except for the foregoingviolation of, there are no optionsany purchase option, call option, warrants, callsright of first refusal, subscriptionspreemptive right, convertible securities or other exchangeable rights, “phantom” share rights, share appreciation rights, share-based units, subscription right or other agreements obligating the Company to issue, transfer or sell any shares similar right under any provision of capital stock of, or other equity interests inany applicable Law, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations Organizational Documents of the Company or any of its Subsidiaries Contract to repurchase, redeem which the Company is a party or otherwise acquire bound; and (z) are free and clear of any shares of capital stock ofLiens (other than restrictions arising under applicable Laws, the Company’s Organizational Documents and the Transaction Agreements). There are no outstanding options, equity awards, warrants, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for Pre-Split Shares. (b) Except as set forth on Section 4.06(b) of the Company Disclosure Letter, as of the date hereof, (i) there are no outstanding Equity Securities with respect to any equity interests inawards (including but not limited to, options, restricted stock, restricted stock units and stock appreciation rights), and (ii) no equity awards have been promised to any employee or other service provider of the Company or its Affiliates but not yet approved by the Company Board and documented in an executed grant agreement. (c) Except as set forth in Section 4.06(a) or on Section 4.06(a), Section 4.06(b) or Section 4.06(c) of the Company Disclosure Letter, as of the date hereof, there are no issued and outstanding Equity Securities of the Company. Except as set forth in the Organizational Documents of the Company, as of the date hereof (i) no Person is entitled to any preemptive or similar rights to subscribe for Equity Securities of the Stock Option Plans Company and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, (ii) there are no contractsoutstanding bonds, commitments debentures, notes or agreements relating other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the votingright to vote) on any matter for which the Company Shareholders may vote. (d) Except as set forth on Section 4.06(d) of the Company Disclosure Letter, purchase or sale of Shares (i) between there are no declared but unpaid dividends or among distributions in respect of any Equity Securities of the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with since its formation through the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 date of this Agreement, and do the Company has not require the consent made, declared, set aside, established a record date for or approval paid any dividends or distributions. (e) The Company Ordinary Shares (including those to be issued in respect of the holders of Company Converted Warrants), when issued in accordance with the outstanding Options or Restricted Sharesterms hereof, shall be duly authorized and validly issued, fully paid and non-assessable and issued in compliance with all applicable Securities Laws and not subject to, and not issued in violation of, any Lien (other than restrictions arising under applicable Laws, the Company’s stockholdersOrganizational Documents and the Transaction Agreements), purchase option, call option, warrant, right of first refusal, preemptive right, convertible or exchangeable right, “phantom” share right, share appreciation right, share-based unit, subscription right or any other party similar right under any provision of applicable Law, the Company’s Organizational Documents or any Contract to effect such acceleration, cancellation and termination except for the action of which the Company Board described in Section 2.7or any Company Shareholder is a party or otherwise bound.

Capitalization of the Company. The Company's authorized capital stock consists of the Company consists solely of (a) 100,000,000 5,000 shares of Series A preferred stock, par value $.01 per share ("Series A Preferred"), 3,010 shares of Series B preferred stock, par value $.01 per share ("Series B Preferred" and together with the Series A Preferred, the "Preferred Stock"), 5,000,000 shares of Class A common stock, par value $0.001 .01 per share, of which 47,898,271 Shares were issued share ("Class A Common") and outstanding as of the date of this Agreement, and (b) 10,000,000 1,000,000 shares of preferred Class B common stock, par value $0.001 .01 per shareshare ("Class B Common" and together with the Class A Common, none the "Common Stock"), of which 1,990 shares of Series A Preferred, 3,010 shares of Series B Preferred and 1,000,000 shares of Class A Common are issued and outstanding on the date hereof and held of record and beneficially by the Stockholders as set forth on Schedule -------- I. All such issued and outstanding Shares have been been, and on the Closing Date - will be, duly authorized and validly issued and are, or are outstanding as will be on the Closing Date, fully paid and non-assessable. No Shares were issued in violation of the date terms of this Agreementany agreement or understanding binding upon the Company or the Subsidiaries, and all Shares were issued in compliance with all applicable federal and state securities laws and regulations. Except for (a) the Shares listed on Schedule I hereto and (b) the stock options described on Schedule II ---------- ----------- attached hereto (the "Outstanding Stock Options"), there are not, and on the Closing Date there will not be, outstanding (i) any options, warrants or other rights to purchase from the Company any capital stock of the Company; (ii) any securities convertible into or exchangeable for shares of such stock; (iii) any stock appreciation rights, phantom stock or other similar rights or plans or (iv) any other commitments of any kind for the issuance of additional shares of capital stock or options, warrants or other securities of the Company. As of the date of this AgreementClosing Date, (i) 3,794,346 Shares were issued and outstanding under the Company shall have redeemed the Outstanding Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by Options in accordance with the redemption agreements between the Company in its treasury. Except for and each Option Holder which are attached hereto as Exhibits B, C and D (the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7"Redemption ------------------- Agreements").

Capitalization of the Company. The (a) As of the date of this Agreement, the authorized capital stock of the Company consists solely of (ax) 100,000,000 300,000,000 shares of common stock, par value $0.001 per shareCompany Common Stock, of which 47,898,271 Shares were 47,325,602 shares are issued and outstanding as of the date of this Agreement, and (by) 10,000,000 186,879,326 shares of preferred stockCompany Preferred Stock, all of which are designated Series B Preferred Stock, par value $0.001 0.00001 per share, none 125,762,535 of which have been are issued or are and outstanding as of the date of this Agreement (the “Series B Preferred Stock”), and there are no other authorized equity interests of the Company that are issued and outstanding. All of the issued and outstanding shares of Company Capital Stock (i) have been duly authorized and validly issued and are fully paid and non-assessable; (ii) have been offered, sold and issued in compliance with applicable Law, including federal and state securities Laws, and all requirements set forth in (1) the Governing Documents of the Company and (2) any other applicable Contracts governing the issuance of such securities; (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, the Governing Documents of the Company or any Contract to which the Company is a party or otherwise bound; and (iv) are free and clear of any Liens. (b) Section 4.6(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, the outstanding Company Warrants. All outstanding Company Warrants (i) have been duly authorized and validly issued and constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity; (ii) have been offered, sold and issued in compliance with applicable Law, including federal and state securities Laws, and all requirements set forth in (1) the Governing Documents of the Company and (2) any other applicable Contracts governing the issuance of such securities; and (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, the Governing Documents of the Company or any Contract to which the Company is a party or otherwise bound; and (iv) are free and clear of any Liens. (c) As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject Options to vesting restrictionspurchase 37,514,584 shares of Company Common Stock, (ii) 2,869,061 Shares were subject to outstanding Options9,087,745 shares of Company Restricted Stock, and (iii) no Shares were held by Company Restricted Stock Unit Awards are outstanding. There are 1,407,536 shares of Company Common Stock reserved for issuance under the Company in its treasuryIncentive Plan. Except for The Company has provided to Acquiror, prior to the foregoingdate of this Agreement, there are no optionsa true and complete list of each current or former employee, warrants, calls, subscriptions, convertible securities consultant or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations director of the Company or any of its Subsidiaries who, as of the date of this Agreement, holds a Company Award, including the type of Company Award, the number of shares of Company Common Stock comprised thereof or subject thereto, vesting schedule, expiration date and, if applicable, the exercise price thereof. All Company Options, shares of Company Restricted Stock and Company Restricted Stock Unit Awards are evidenced by award agreements in substantially the forms previously made available to repurchaseAcquiror, and no Company Option, shares of Company Restricted Stock or Company Restricted Stock Unit Award, is subject to terms that are materially different from those set forth in such forms. Each Company Option, each share of Company Restricted Stock, and each Company Restricted Stock Unit Award, was validly granted or issued and properly approved by, the Board of Directors of the Company (or appropriate committee thereof) in accordance with the terms of the Company Incentive Plan. Each Company Option has been granted with an exercise price that is intended to be no less than the fair market value of the underlying Company Common Stock on the date of grant, as determined in accordance with Section 409A of the Code or Section 422 of the Code, if applicable. Each Company Option is intended to either qualify as an “incentive stock option” under Section 422 of the Code or to be exempt under Section 409A of the Code. (d) Except as otherwise set forth in this Section 4.6 or on Section 4.6(d) of the Company Disclosure Letter, the Company has not granted any outstanding subscriptions, options, stock appreciation rights, warrants, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for shares of Company Capital Stock, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional shares, the sale of treasury shares or other equity interests, or for the repurchase or redemption of shares or other equity interests of the Company or the value of which is determined by reference to shares or other equity interests of the Company, and there are no voting trusts, proxies or agreements of any kind which may obligate the Company to issue, purchase, register for sale, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7Capital Stock.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were the Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and outstanding under the Company Stock Option Plans as restricted stock awards are fully paid and remain non-assessable and are not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor 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 or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the Company owns 26.2% of the issued and outstanding JEH LLC Units (or such additional amount to reflect the exercise of the Underwriters’ option to purchase Option Shares pursuant to Section 2 hereof); such JEH LLC Units have been duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and are owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as date hereof (the termination of the Stock Option Plans as contemplated by Section 2.7 of this “Credit Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7”).

Capitalization of the Company. The After giving effect to the Reorganization, the Company will have an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were have been duly and validly authorized and issued and outstanding as of the date of this Agreement, are fully paid and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or non-assessable and are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor 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 or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and, after giving effect to the Reorganization, the Company will own 25.3% of the issued and outstanding JEH LLC Units (or such additional amount to reflect the exercise of the Underwriters’ option to purchase Option Shares pursuant to Section 2 hereof); such JEH LLC Units will be duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and will be owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration date hereof (the “Credit Agreement”), and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this that certain Second Lien Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Energy Capital, Inc., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and do not require Sole Bookrunner, and the consent or approval of lenders thereto, as amended through the holders of date hereof (the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7“Term Loan”).

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 60,000,000 shares of common stockCommon Stock, par value $0.001 0.01 per share, of which 47,898,271 Shares were issued and outstanding which, as of the date of this Agreementhereof, 42,828,563 shares are outstanding and (b) 10,000,000 held by persons or entities other than a Company Subsidiary, no shares are outstanding and held by a Company Subsidiary and no shares are held in the Company's treasury; 5,000,000 shares of preferred stockPreferred Stock, par value $0.001 0.01 per share, none of which have been issued or are outstanding which, as of the date hereof, 1,380,000 shares designated as $2.25 Convertible Exchangeable Preferred Stock are outstanding and held by persons or entities other than a Company Subsidiary and no shares designated as such are held by a Company Subsidiary, 2,750 shares designated as Series A Convertible Preferred Stock are outstanding and held by persons or entities other than a Company Subsidiary and no shares designated as such are held by a Company Subsidiary, and no such shares of this Agreementeither such designation are held in the Company's treasury. As All outstanding shares of capital stock of the date Company have been validly issued and are fully paid and nonassessable, and no shares of capital stock of the Company are subject to, nor have any been issued in violation of, preemptive or similar rights. All issuances, sales, and repurchases by the Company of shares of its capital stock have been effected in compliance with all Applicable Laws, including without limitation applicable federal and state securities laws. Schedule 3.4 describes all outstanding options and warrants to purchase Company Stock, and the aggregate number of shares of Company Common Stock reserved for issuance and issuable upon the exercise of outstanding warrants and stock options. Except as set forth above in this AgreementSection and on Schedule 3.4, there are (and as of the Closing Date there will be) outstanding (i) 3,794,346 Shares were issued and outstanding under no shares of capital stock or other voting securities of the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictionsCompany, (ii) 2,869,061 Shares were subject to outstanding Optionsno securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of the Company, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities warrants or other rights (including preemptive rights) to acquire from the Company, or other agreements obligating and no obligation of the Company to issueissue or sell, transfer or sell any shares of capital stock ofor other voting securities of the Company or any securities of the Company convertible into or exchangeable for such capital stock or voting securities, and (iv) no equity equivalents, interests in the ownership or earnings, or other equity interests in, similar rights of or with respect to the Company. All issued There are (and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free as of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, Closing Date there are will be) no outstanding obligations of the Company or any of its Subsidiaries Subsidiary to repurchase, redeem redeem, or otherwise acquire any shares of capital stock the foregoing shares, securities, options, warrants, equity equivalents, interests, or rights. The Company is not a party to, and is not aware of, any voting agreement, voting trust, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent similar agreement or Purchaser, there are no contracts, commitments or agreements arrangement relating to the voting, purchase any class or sale of Shares (i) between or among the Company or its Subsidiaries and any series of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third partycapital stock. The classes of Company Stock Option Plans denominated as Company Common Stock and Company Convertible Exchangeable Preferred Stock are each listed for trading and trade on the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7NASDAQ NMS.

Capitalization of the Company. The authorized capital stock of the ----------------------------- Company consists solely of of: (ai) 100,000,000 10,000,000 shares of common Common Stock, of which 640,845 shares will be, as of the Closing, duly and validly issued, outstanding, fully paid and nonassessable after giving effect to the recapitalization contemplated by Section 3.9; (ii) 54,500 shares of designated preferred stock, par value $0.001 .01 per share, of which 47,898,271 Shares were (a) 26,000 shares have been designated as Series A Convertible Participating Preferred Stock and will, as of the Closing, be issued, outstanding, fully paid, and nonassessable, (b) 6,500 shares have been designated as Series B Convertible Participating Preferred Stock and will, as of the Closing, be issued, outstanding, fully paid, and nonassessable, (c) 19,375 shares have been designated as Senior Redeemable Preferred Stock, none of which will be issued and outstanding as of the date of this AgreementClosing, and (bd) 10,000,000 2,625 shares have been designated as Junior Redeemable Preferred Stock, none of which will be issued and outstanding as of the Closing; and (iii) 50,000 shares of undesignated preferred stock, par value $0.001 .01 per share, none . Except as disclosed in Schedule 2.4 ------------ and except for 1,327,465 shares of which have been Common Stock issued or reserved for issuance under the Company's Stock Option and Grant Plan in the form attached hereto as Exhibit F (the "Stock Option Plan"), the Company has not issued any other shares --------- of its capital stock and there are no outstanding as warrants, options or other rights to purchase or acquire any of the date of this Agreementsuch shares, nor any outstanding securities convertible into such shares or outstanding warrants, options or other rights to acquire any such convertible securities. As of the date Closing, assuming the accuracy of the Investor representations set forth in Section 5 hereof, all of the outstanding shares of capital stock of the Company will have been offered, issued, sold and delivered in compliance with applicable federal and state securities laws. The Preferred Shares have been duly and validly authorized and, when delivered and paid for pursuant to this Agreement, (i) 3,794,346 will be validly issued, fully paid and nonassessable. The Preferred Shares were are convertible into 15,500 shares of Senior Redeemable Preferred Stock and 2,600,000 shares of Common Stock representing 80% of the Common Stock of the Company on a presently outstanding basis and 57% of the Common Stock of the Company on a fully-diluted basis after giving effect to the issuance of the 1,327,465 shares issued and outstanding or reserved for issuance under the Company Stock Option Plans Plan and the exercise, exchange or conversion of any other securities exercisable or exchangeable for or convertible into Common Stock. The relative rights, preferences, restrictions and other provisions relating to the Preferred Stock are as restricted stock awards set forth in Exhibit B attached hereto. --------- The Company has authorized and remain subject to vesting restrictions, (ii) 2,869,061 reserved for issuance upon conversion of the Preferred Shares were subject to outstanding Optionsnot less than 15,500 shares of its Senior Redeemable Preferred Stock and 2,600,000 shares of its Common Stock, and (iii) no the Conversion Shares were held by issuable upon such conversion will be, when issued in accordance with the Company in its treasuryAmended and Restated Certificate of Incorporation of the Company, duly and validly authorized and issued, fully paid and nonassessable. Except for the foregoingas set forth on Schedule 2.4, there are no options, warrants, calls, subscriptions, convertible securities preemptive rights or other rights, ------------ rights of first refusal with respect to the issuance or other agreements obligating the Company to issue, transfer or sell any shares sale of capital stock of, or other equity interests in, the Company's capital stock. All issued and outstanding Shares are duly authorizedExcept as set forth on Schedule 2.4, validly issuedno officer, fully paid, nonassessable and free of preemptive rights, rights of refusal director or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations ------------ employee of the Company or any of its Subsidiaries other person or entity has, claims to repurchase, redeem have or otherwise acquire has any shares of capital stock of, or other equity interests in, right to claim to have any interest in the Company's capital stock. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into as disclosed in connection with the Offer and the Merger at the request of Parent or PurchaserSchedule 2.4, there are no contracts, commitments restrictions on the transfer of the ------------ Company's capital stock other than those arising from federal and state securities laws or agreements relating pursuant to the votingStockholders' Agreement. Except as set forth on Schedule 2.4 or pursuant to the Stockholders' Agreement, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholdersthere are no rights, ------------ obligations, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with restrictions on the SEC, among voting of any of the Company’s stockholders 's capital stock or between any the registration of such capital stock for offering to the public pursuant to the Securities Act of 1933, as amended (the "Securities Act") with respect to the capital stock owned by the Lammle Entities or the Linn Entities or which arise pursuant to the Company’s stockholders and 's charter documents or any third agreement to which the Company is a party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination shares of the Stock Option Plans as capital stock, before giving effect to the transactions contemplated by Section 2.7 of this Agreement, are held of record and do not require beneficially by the consent or approval of persons identified in Schedule 2.4 in the holders of amounts ------------ indicated therein. Upon the outstanding Options or Restricted SharesClosing, and after giving effect to the transactions contemplated by this Agreement, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action only stockholders of the Company Board described other than the Investors will be the Lammle Entities which, collectively, will beneficially own 6,500 shares of Series B Convertible Preferred Stock, in Section 2.7the amount set forth on Appendix B. ---------- The Company has no subsidiaries or investments in any other corporation or business organization. Except as disclosed in Schedule 2.4, the Company does ------------ not own or have any direct or indirect interest in, a loan or advance to, or control over any corporation, partnership, joint venture or other entity of any kind.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were the Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and outstanding under the Company Stock Option Plans as restricted stock awards are fully paid and remain non-assessable and are not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor 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 or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and after giving effect to the transactions contemplated hereby, the Company will own 49.1% of the issued and outstanding JEH LLC Units (or such additional amount to reflect the exercise of the Underwriter’s option to purchase Option Shares pursuant to Section 2 hereof); such JEH LLC Units have been duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and are owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as date hereof (the termination of the Stock Option Plans as contemplated by Section 2.7 of this “Credit Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7”).

Capitalization of the Company. The (a) As of the date of this Agreement, the authorized capital stock of the Company consists solely of (ax) 100,000,000 shares 6,400,000 Company Common Units, all of common stockwhich are issued and outstanding as of the date of this Agreement, par value $0.001 per share(y) 17,571,542 Company Incentive Units, of which 47,898,271 Shares were 17,095,154 are issued and outstanding as of the date of this Agreement, and (bz) 10,000,000 shares of preferred stock, par value $0.001 per share, none 9,810,329 Company Preferred Units (all of which have been are issued or are and outstanding as of the date of this Agreement, 3,673,227.5 of which are Series A-1 Preferred Units, 1,973,105.6 of which are Series A-2 Preferred Units, 3,271,138.8 of which are Series A-3 Preferred Units and 892,857.1 of which are Series A-4 Preferred Units), and there are no other authorized equity interests of the Company that are issued and outstanding. As All of the issued and outstanding Company Units (i) have been duly authorized and validly issued and are fully paid and non-assessable; (ii) have been offered, sold and issued in compliance in all material respects with applicable Law, including federal and state securities Laws, and all requirements set forth in (1) the Governing Documents of the Company and (2) any other applicable Contracts governing the issuance of such securities; (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, the Governing Documents of the Company or any Contract to which the Company is a party or otherwise bound; and (iv) are free and clear of any Liens. (b) The Company has provided to Bright Lights, prior to the date of this Agreement, (i) 3,794,346 Shares were issued a true and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictionscomplete list of each current or former employee, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities consultant manager or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations director of the Company or any of its Subsidiaries or any other holder who, as of the date of this Agreement, holds a Company Incentive Unit, including the applicable distribution threshold, vesting schedule (including any acceleration terms) and voting rights corresponding thereto. All Company Incentive Units are evidenced by award agreements in substantially the forms previously made available to repurchaseBright Lights, and no Company Incentive Units are subject to terms that are materially different from those set forth in such forms. Each Company Incentive Unit was validly issued and properly approved by, the Board of Managers of the Company (or any Person or group of Persons to whom or which the Board of Managers of the Company has delegated authority to administer the Company Incentive Plan). (c) Except as otherwise set forth in this Section 4.6, the Governing Documents of the Company or on Section 4.6(c) of the Company Disclosure Letter, (i) the Company has not granted any outstanding subscriptions, options, appreciation rights, warrants, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for Company Units, any equity or equity-related interests of the Company, the value of which is determined by reference to the Company Units, or any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), (ii) the Company has not made plans or other agreements of any character providing for the issuance of additional Company Units or the grant of equity or equity related interests of ParentCo, the sale of Company Units held in treasury or other equity interests, or for the repurchase or redemption of shares or other equity or equity-related interests of the Company or the value of which is determined by reference to shares or other equity interests of the Company, and (iii) there are no voting trusts, proxies or agreements of any kind which may obligate the Company to issue, purchase, register for sale, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7Units.

Capitalization of the Company. The (a) As of the date of this Agreement, the authorized capital stock of the Company consists solely of (ax) 100,000,000 25,000,000 shares of common stock, par value $0.001 per shareCompany Common Stock, of which 47,898,271 Shares were 14,020,318 shares (including 7,240,000 Company Restricted Shares) are issued and outstanding as of the date of this Agreement, and (by) 10,000,000 7,500,000 shares of preferred stock, par value $0.001 per share, none Company Preferred Stock (of which have been 5,100,000 of which are issued or are and outstanding as of the date of this Agreement), and there are no other authorized equity interests of the Company that are issued and outstanding. All of the issued and outstanding shares of Company Capital Stock (i) have been duly authorized and validly issued and are fully paid and non-assessable; (ii) have been offered, sold and issued in compliance in all material respects with applicable Law, including federal and state securities Laws, and all requirements set forth in (1) the Governing Documents of the Company and (2) any other applicable Contracts governing the issuance of such securities; (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, the Governing Documents of the Company or any Contract to which the Company is a party or otherwise bound; and (iv) are free and clear of any Liens other than Liens imposed under the Governing Documents of the Company or Permitted Liens. (b) As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no Company Options or Company RSUs outstanding. (c) Except as otherwise set forth in this Section 4.6 or on Section 4.6(c) of the Company Disclosure Letter, the Company has not granted any outstanding subscriptions, options, restricted stock units, stock appreciation rights, warrants, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for shares of Company Capital Stock, any other equity interests or equity-related awards, any other commitments, calls, subscriptions, convertible securities or other conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements obligating of any character providing for the issuance of additional shares, the sale of treasury shares or other equity interests, or for the repurchase or redemption of shares or other equity interests of the Company or the value of which is determined by reference to shares or other equity interests of the Company, and there are no voting trusts, proxies or agreements of any kind which may obligate the Company to issue, transfer or sell any shares of capital stock ofpurchase, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except register for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchasesale, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7Capital Stock.

Capitalization of the Company. The authorized capital stock Interests of the Company consists solely of Metal Resources consist of: (ai) 100,000,000 shares of common stock, par value $0.001 per share400,000 Series A Preferred Units, of which 47,898,271 Shares were 400,000 are issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictionsoutstanding, (ii) 2,869,061 Shares were subject to outstanding Options400,000 Series A-1 Preferred Units, of which 400,000 are issued and outstanding, (iii) 400,000 Series B Preferred Units, of which 400,000 are issued and outstanding, (iv) 259,261 Series D Preferred Units, of which 259,261 are issued and outstanding, and (iiiv) no Shares 258,484 Series C Common Units, of which 258,484 are issued and outstanding. All of the issued and outstanding Interests were held by duly authorized and validly issued and are fully paid and nonassessable. None of the Company issued and outstanding Interests were issued in its treasuryviolation of any Law. The Sellers collectively are and will be at the Closing the record and beneficial owners and holders of all of the issued and outstanding Interests, free and clear of all Encumbrances other than the Permitted Restrictions, as defined below. Except for the foregoingas set forth on Schedule 3.3, there are no contracts relating to the issuance, sale or transfer of any Interests or other equity or equity-based securities of the Company. Metal Resources owns one hundred percent (100%) of the limited liability company membership interests of the Company ("Company Membership Interests"). The Interests and the Company Membership Interests are validly issued and outstanding and are owned beneficially and of record by Sellers and Metal Resources, respectively, free and clear of any mortgage, security interest, pledge, lien, charge, claim, lease, conditional sale or other title retention agreement, easement, limitation, commitment, encroachment, restriction or other encumbrance (each an "Encumbrance" and collectively, the "Encumbrances") other than as provided in Metal Resources' and the Company's Certificates of Formation, the Metal LLC Agreement, the Company's Limited Liability Company Agreement ("Company LLC Agreement"), the Delaware Limited Liability Company Act, as amended, the Securities Act of 1933, as amended, and any state securities laws (collectively, the "Permitted Restrictions"). Except as set forth on Schedule 3.3, no limited liability company membership interests of Metal Resources or the Company are reserved for issuance, and there are no issued and outstanding contracts, demands, commitments, options, warrants, callsrights of first refusal, offers, subscriptions, convertible securities or other preemptive rights, claims of any character or other agreements obligating or understandings to which Metal Resources or the Company is bound relating to issuethe limited liability company membership interests of Metal Resources or the Company (including, transfer without limitation, the Interests or sell the Company Membership Interests) or pursuant to which Metal Resources or the Company is or may become obligated to sell, transfer, assign, issue or exchange any shares of capital stock oflimited liability company membership interests, or other equity by which any person or entity has any right to acquire an interest in any limited liability company membership interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal Metal Resources or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for as provided in the Stock Option Plans and Metal LLC Agreement or Company LLC Agreement, or as set forth on Schedule 3.3, no portion of the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent Interests or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this AgreementMembership Interests are subject, and do not require the consent neither Sellers nor Metal Resources is a party to, any voting trust, proxy or approval of the holders of the outstanding Options other contract, agreement, arrangement, commitment or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7understanding relating thereto.