Common use of Capitalization; Voting Rights Clause in Contracts

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of fifty million (50,000,000) shares of Voting Common Stock (par value $.001 per share), two million six hundred eight thousand three hundred ninety (2,608,390) shares of which are issued and outstanding and one million nine hundred fifty four thousand one hundred twenty (1,954,120) shares of which remain reserved for future issuance to employees, officers, directors and consultants pursuant to the Company's 1999 Equity Incentive Plan (after issuance of the 100,000 shares of Voting Common Stock thereunder as described below), twenty five million (25,000,000) shares of Non-Voting Common Stock, none of which are issued and outstanding, and thirty two million six hundred thousand (32,600,000) shares of Preferred Stock (par value $.001 per share), eight million six hundred thousand (8,600,000) of which are designated Series A Preferred Stock, seven million nine hundred forty two thousand nine hundred seventy (7,942,970) of which are issued and outstanding, twelve million (12,000,000) of which are designated Series B-1 Voting Preferred Stock, none of which are issued and outstanding, and twelve million (12,000,000) of which are designated Series B-2 Non-Voting Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock (a) have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing), and except as may be granted pursuant to this Agreement and the Investor Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. Following the acquisition of the Shares as provided herein, and assuming conversion of all outstanding Series A Preferred Stock and Series B Preferred Stock, the Shares

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the first Closing, will consist of fifty (a) seventy five million (50,000,00075,000,000) shares of Voting Common Stock Stock, thirteen million four hundred nineteen thousand nine hundred sixteen (par value $.001 per share), two million six hundred eight thousand three hundred ninety (2,608,39013,419,916) shares of which are issued and outstanding and one outstanding, three million nine eight hundred seventy-three thousand eight hundred fifty four thousand one hundred twenty three (1,954,1203,873,853) shares of which remain are currently reserved for future issuance to employees, officers, directors and consultants pursuant to the Company's 1999 Equity Incentive Plan outstanding option agreements, and one million one hundred twenty-six thousand one hundred forty seven (after issuance of the 100,000 shares of Voting Common Stock thereunder as described below), twenty five million (25,000,0001,126,147) shares of Non-Voting Common Stockwhich will be reserved in the future for issuance to key employees, none consultants and others affiliated with the Company pursuant to stock grant, stock purchase and/or option plans or any other stock incentive program, arrangement or agreement approved by the Company’s Board of which are issued Directors and outstanding, and thirty two (b) twenty million six hundred thousand (32,600,00020,000,000) shares of Preferred Stock Stock, five million (par value $.001 per share), eight million six hundred thousand (8,600,0005,000,000) of which are designated Series A Convertible Participating Preferred Stock, seven million nine two hundred forty two sixty four thousand nine three hundred seventy sixteen (7,942,970264,316) of which are issued and outstanding, twelve million (12,000,000) of which are designated Series B-1 Voting Preferred Stock, none of which are issued and outstanding, and twelve million (12,000,000) of which are designated Series B-2 Non-Voting Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's ’s Common Stock (ai) have been duly authorized and validly issued, (bii) are fully paid and nonassessable, nonassessable and (ciii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. (b) Under the Company’s 2013 Equity Compensation Plan and 2014 Equity Compensation Plan (collectively, the “Plans”): (i) there are 3,873,853 options currently outstanding, and (ii) 1,126,147 shares of Common Stock remain available for future issuances to officers, directors, employees and consultants of the Company. The rightsCompany has not made any representations regarding equity incentives to any officer, preferencesemployee, privileges director or consultant that are inconsistent with any share amounts and restrictions of the Shares are as stated terms set forth in the Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Company’s board minutes. (c) Other than (i) the 2,054,120 3,873,853 options currently outstanding, (ii) the 1,126,147 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan Plans, (iii) two Promissory Notes for a total of which options for 240,000 $200,000 plus interest convertible into shares of Voting Common Stock have been grantedat a price per share of $1.50, and (iv) the conversion privileges of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing)Stock, and except as may be granted pursuant to, or referred to in, this Agreement and the Investor Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. Following the acquisition . (d) The rights, preferences, privileges and restrictions of the Shares and the Compensation Stock are as provided herein, stated in the Articles. The Conversion Shares have been duly and assuming conversion validly reserved for issuance. When issued in compliance with the provisions of all outstanding Series A Preferred Stock this Agreement and Series B Preferred Stockthe Articles, the Shares, the Conversion Shares, and the Compensation Stock will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances other than (i) liens and encumbrances created by or imposed upon the Purchaser; and (ii) any right of first refusal set forth in the Company’s Bylaws; provided, however, that the Shares, the Conversion Shares, and the Compensation Stock may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. The sale of the Shares and the subsequent conversion of the Shares into Conversion Shares and the issuance of the Compensation Stock are not and will not be subject to any preemptive rights or rights of first refusal that have not been properly waived or complied with. (e) No stock options, stock appreciation rights or other equity-based awards issued or granted by the Company are subject to the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). Each “nonqualified deferred compensation plan” (as such term is defined under Section 409A(d)(1) of the Code and the guidance thereunder) under which the Company makes, is obligated to make or promises to make, payments (each, a “409A Plan”) complies in all material respects with the requirements of Section 409A of the Code and the guidance thereunder. No payment to be made under any 409A Plan is, or to the knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code.

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist Company consists of fifty forty million (50,000,00040,000,000) shares of Voting Common Stock Stock, One-Tenth of One Cent ($0.001) par value $.001 per share), two million six hundred eight thousand three hundred ninety of which there were Fourteen Million Seven Hundred Thousand One Hundred Seventy Four (2,608,39014,700,174) shares issued and outstanding as of May 14, 1999, and Ten Million (10,000,000) shares of Preferred Stock, $0.001 par value per share of which are there were Twelve Thousand Five Hundred (12,500) shares issued and outstanding as of May 14, 1999. All outstanding shares of the Company Common Stock and one million nine hundred fifty four thousand one hundred twenty the Company Common Stock are duly authorized, validly issued, fully paid and nonassessable, free of any liens or encumbrances and are not subject to preemptive rights created by statute, the certificate of incorporation or bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound. As of May 14, 1999, the Company had reserved an aggregate of Two Million Eight Hundred Thirty Three Thousand One Hundred Eleven (1,954,1202,833,111) shares of which remain the Company Common Stock, net of exercises, for issuance under the Corixa Corporation 1994 Amended and Restated Stock Option Plan (the "Corixa Stock Option Plan"), the Corixa Corporation Directors' Stock Option Plan (the "Corixa Directors' Plan"), and the Corixa Corporation 1997 Employee Stock Purchase Plan (the "Corixa ESPP", and together with the Corixa Stock Option Plan and the Corixa Directors' Plan, the "Corixa Plans"). As of May 14, 1999, the Company had reserved Two Million Seven Hundred Sixty Six Thousand Two Hundred Thirty Four (2,766,234) shares of the Company's Common Stock for future issuance to employees, officers, directors and consultants pursuant to the Company's 1999 Equity Incentive Plan Corixa Stock Option Plan, of which Three Hundred Forty Seven Thousand One Hundred Fifty Five (after issuance of the 100,000 shares of Voting Common Stock thereunder as described below), twenty five million (25,000,000347,155) shares of Non-Voting Common Stockhave been issued pursuant to option exercises, none of which and Two Million One Hundred Eighty Five Thousand Two Hundred Ninety Two (2,185,292) shares are issued and subject to outstanding, and thirty two million six hundred thousand unexercised options. As of May 14, 1999, the Company had reserved Three Hundred Thousand (32,600,000300,000) shares of Preferred Stock (par value $.001 per share), eight million six hundred thousand (8,600,000) of which are designated Series A Preferred Stock, seven million nine hundred forty two thousand nine hundred seventy (7,942,970) of which are issued and outstanding, twelve million (12,000,000) of which are designated Series B-1 Voting Preferred Stock, none of which are issued and outstanding, and twelve million (12,000,000) of which are designated Series B-2 Non-Voting Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock for issuance to directors pursuant to the Corixa Directors' Plan, of which Seventy Five Thousand (a75,000) are subject to outstanding, unexercised options. As of May 14, 1999, the Company had reserved One Hundred Thirty Thousand Eight Hundred Eighty Seven (130,887) shares of the Company's Common Stock for issuance to employees pursuant to the Corixa ESPP, of which Seventeen Thousand Eight Hundred Ninety Seven (17,897) shares have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuanceto employees. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase set forth in the aggregate 200,000 shares Schedule of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated Exceptions or as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing), and except as may be granted pursuant to contemplated in this Agreement and the Investor Rights Agreement, there are no outstanding other options, warrants, rights (including conversion or preemptive rights and rights of first refusal)calls, proxy or shareholder agreementsrights, commitments or agreements of any kind for character to which the purchase Company is a party or acquisition from by which either the Company is bound or obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company or obligating the Company to grant, extend or enter into any Subsidiary of any of its securities. Following the acquisition of the Shares as provided hereinsuch option, and assuming conversion of all outstanding Series A Preferred Stock and Series B Preferred Stockwarrant, the Sharescall, right, commitment or agreement.

Capitalization; Voting Rights. The authorized capital stock of the CompanyCompany consists, immediately or will consist prior to the Closing, will consist of fifty million (50,000,000) shares of Voting Common Stock (par value $.001 per share), two million six hundred eight thousand three hundred ninety (2,608,390) shares of which are issued and outstanding and one million nine hundred fifty four thousand one hundred twenty (1,954,120) shares of which remain reserved for future issuance to employees, officers, directors and consultants pursuant to the Company's 1999 Equity Incentive Plan (after issuance of the 100,000 shares of Voting Common Stock thereunder as described below), twenty twenty-five million (25,000,000) shares of Non-Voting Common Stock, none four million six hundred sixty four thousand seven hundred forty nine (4,664,749) shares of which are shall be issued and outstanding, and thirty twenty-two million three hundred ninety-eight thousand (22,398,000) shares of Preferred Stock. Of the 22,398,000 shares of Preferred Stock, three hundred twenty-five thousand (325,000) shares of Preferred Stock are reserved for Series A-1 Preferred Stock, of which all will be issued and outstanding, and 325,000 shares are reserved for Series A-N Preferred Stock, of which none will be issued or outstanding; 1,804,000 shares will be reserved for Series B-1 Preferred Stock, of which all will be issued and outstanding, and 1,804,000 shares will be reserved for Series B-N Preferred Stock, of which none will be issued or outstanding; 4,059,573 shares will be reserved for Series C-1 Preferred Stock, of which all will be issued and outstanding and 4,070,000 shares will be reserved for Series C-N Preferred Stock, of which none will be issued or outstanding; and 2,800,000 shares will be reserved for Series D Preferred Stock of which none will be issued or outstanding prior to the Closing. The Company has reserved five million six hundred thousand (32,600,0005,600,000) shares of Preferred Common Stock (par value $.001 per share)for issuance under the Company's 1995 Stock Incentive Plan to employees, eight million six hundred thousand (8,600,000) consultants, and directors or officers of the Company, against which are designated Series A Preferred Stock, seven million nine hundred forty two thousand nine hundred seventy (7,942,970) of which are 3,299,600 options to purchase shares shall be issued and outstanding immediately after the Closing. In addition to the 3,299,600 options that are outstanding, twelve million (12,000,000) the Company has issued a total of which are designated Series B-1 Voting Preferred Stock, none 661,674 shares of which are issued and outstanding, and twelve million (12,000,000) of which are designated Series B-2 Non-Voting Preferred Stock, none of which are issued and outstandingits Common Stock pursuant to stock option exercises. All issued and outstanding shares securities of the Company's Common Stock Company (ai) will have been duly authorized and validly issued, (bii) are will be fully paid and nonassessable, and (ciii) were will have been issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Third Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basisArticles. The Conversion Shares have been duly and validly reserved for issuance. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase may be set forth in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing)SCHEDULE II, and except as may be granted pursuant to this Agreement and the Investor Rights AgreementRelated Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. Following Except as may be set forth in the acquisition of the Shares as provided herein, and assuming conversion of all outstanding Series A Preferred Stock and Series B Preferred StockThird Restated Articles, the SharesCompany has no obligation to repurchase any of its capital stock.

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of fifty eighty million (50,000,00080,000,000) shares of Voting Common Stock (par value $.001 per share)Stock, twenty-two million six seven hundred eight sixteen thousand three one hundred ninety fifty-four (2,608,39022,716,154) shares of which are issued and outstanding and one outstanding, eleven million nine hundred fifty four forty six thousand one seven hundred twenty forty five (1,954,12011,946,745) shares of which remain are reserved for future issuance to employees, officers, directors and consultants employees pursuant to the Company's 1999 1996 Equity Incentive Plan of which five hundred seventy four thousand seven hundred thirty three (after 574,733) shares have been exercised pursuant to options (and are reflected in the outstanding Common Stock referenced above) eight million fifty six thousand two hundred twenty seven (8,056,227) shares are reserved for outstanding options and three million three hundred fifteen thousand seven hundred eighty five (3,315,785) shares are reserved for future issuance of the 100,000 shares of Voting Common Stock thereunder as described below)options, twenty five million seventy eight thousand (25,000,00078,000) shares of Non-Voting which are reserved for the exercise of certain warrants to purchase Common Stock, none Stock of the Company and seven million four hundred nineteen thousand seven hundred sixty nine (7,419,769) shares of which are issued and outstandingreserved for issuance upon conversion of the Series A Preferred Stock, and thirty two twenty million six hundred thousand (32,600,00020,000,000) shares of Preferred Stock (par value $.001 per share)Stock, eight seven million six five hundred thousand (8,600,0007,500,000) of which are designated Series A Preferred Stock, seven million four hundred nineteen thousand seven hundred sixty nine hundred forty two thousand nine hundred seventy (7,942,9707,419,769) of which are issued and outstanding, twelve million (12,000,000) of which are designated Series B-1 Voting Preferred Stock, none shares of which are issued and outstanding, and twelve million five hundred thousand (12,000,00012,500,000) of which are designated Series B-2 Non-Voting B Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Series A Preferred Stock (a) have been duly authorized and validly issued, issued (b) are fully paid and nonassessable, and (c) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated CertificateCharter. Each Subject to adjustment as set forth in the Restated Charter, each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 1996 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing)Plan, and except as may be granted pursuant to this Agreement and the Investor Rights AgreementRelated Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder agreements, or agreements of any kind for the issuance by the Company or purchase or acquisition from the Company or any Subsidiary of any of its securities. Following When issued in compliance with the acquisition provisions of this Agreement and the Restated Charter, the Shares as provided hereinand the Conversion Shares will be validly issued, fully paid and nonassessable, and assuming conversion will be free of all outstanding Series A Preferred Stock any liens, encumbrances or pre-emptive rights; provided, however, that the Shares and Series B Preferred Stock, the SharesConversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed.

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the First Closing, will consist of fifty million Twenty-Seven Million (50,000,00027,000,000) shares of Voting Common Stock Stock, Four Million Three Hundred Seventy-Two Thousand Two Hundred Forty-Five (par value $.001 per share), two million six hundred eight thousand three hundred ninety (2,608,3904,372,245) shares of which are issued and outstanding and one million nine hundred fifty four thousand one hundred twenty Two Million Two Hundred Eighty Thousand (1,954,1202,280,000) shares of which remain are reserved for future issuance to employees, officers, directors and consultants pursuant of which One Million One Hundred Thousand Five Hundred Thirty-Five (1,100,535) shares are subject to options or purchase rights which have been issued to the Company's 1999 Equity Incentive Plan employees, consultants and other service providers and One Million One Hundred Seventy-Nine Thousand Four Hundred Sixty-Five Thousand (after issuance 1,179,465) are reserved for options which have not been granted as of the 100,000 shares of Voting Common Stock thereunder as described below), twenty five million date hereof and Twenty Million (25,000,000) shares of Non-Voting Common Stock, none of which are issued and outstanding, and thirty two million six hundred thousand (32,600,00020,000,000) shares of Preferred Stock Stock, Six Million Seventy-Three Thousand (par value $.001 per share), eight million six hundred thousand (8,600,0006,073,000) of which are designated Series A Preferred Stock, seven million nine hundred forty two thousand nine hundred seventy Six Million Thirty-Five Thousand (7,942,9706,035,000) shares of which are issued and outstanding, twelve million Eight Hundred Ten Thousand (12,000,000810,000) of which are designated Series B-1 Voting B Preferred Stock, none of which are issued and outstanding, and twelve million Thirteen Million One Hundred Thousand (12,000,00013,100,000) of which are designated Series B-2 Non-Voting C Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock (ai) have been duly authorized and validly issuedissued to the persons listed on Exhibit E hereto, (bii) are fully paid and nonassessable, and (ciii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing)set forth on Exhibit E, and except as may be granted pursuant to this the Investor Rights Agreement and the Investor Rights Shareholders Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. Following When issued in compliance with the acquisition provisions of this Agreement and the Certificate, the Shares as provided hereinand the Conversion Shares will be validly issued, fully paid and nonassessable, and assuming conversion will be free of all outstanding Series A Preferred Stock any liens or encumbrances; provided, however, that the Shares and Series B Preferred Stock, the SharesConversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed.

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of fifty million (50,000,000) shares of Voting Common Stock (par value $.001 per share)thirty seven million, two million six seven hundred eight ninety one thousand three hundred ninety thirty two (2,608,39037,791,332) shares, twenty one million three hundred fifty eight thousand five hundred forty six (21,358,546) shares of which are issued shall be Common Stock (the "Common Stock") and outstanding and one sixteen million nine four hundred fifty four thirty two thousand one seven hundred twenty eighty six (1,954,12016,432,786) shares of which remain reserved for future issuance to employeesshall be Preferred Stock (the "Preferred Stock"). Of the Preferred Stock, officerssix million seven hundred thousand (6,700,000) shares are hereby designated "Series A Preferred Stock" (the "Series A Preferred"), directors nine million thirty two thousand seven hundred eighty six (9,032,786) shares are hereby designated "Series B Preferred Stock" (the "Series B Preferred"), and consultants pursuant to five hundred thousand (500,000) shares are hereby designated "Series S-1 Preferred Stock" (the Company's 1999 Equity Incentive Plan "Series S-1 Preferred"). Of the Common Stock, three million four hundred seventy two thousand nine hundred (after issuance 3,472,900) shares are issued and outstanding, of the 100,000 shares of Voting Common Stock thereunder as described below), twenty five six million seven hundred thousand (25,000,0006,700,000) shares of Non-Voting Common Series A Preferred Stock, none of which all are issued and outstanding, and of the nine million thirty two million thousand seven hundred eighty six hundred thousand (32,600,000) shares of Preferred Stock (par value $.001 per share), eight million six hundred thousand (8,600,0009,032,786) of which are designated Series A B Preferred Stock, seven million nine hundred forty two thousand nine hundred seventy (7,942,970) of which are issued and outstanding, twelve million (12,000,000) of which are designated Series B-1 Voting Preferred Stock, none of which are issued and outstanding, and twelve million (12,000,000) of which are designated Series B-2 Non-Voting Preferred Stock, none of which all are issued and outstanding. All issued and outstanding shares of the Company's Common Stock (ai) have been duly authorized and validly issued, (bii) are fully paid and nonassessable, and (ciii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Amended and Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basisArticles. The Conversion Shares have been duly and validly reserved for issuance. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan options to acquire one million five hundred sixty three thousand, six hundred thirty (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,7191,563,630) shares of Common Stock held by officers, employees and consultants of the Company, and First Amended Investor Rights Agreement between the Company, certain holders of its Common Stock, and the holders of its Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A B Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing), and except as may be granted pursuant to this Agreement and the Investor Rights AgreementStock, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. Following When issued in compliance with the acquisition provisions of this Agreement and the Amended and Restated Articles, the Shares as provided hereinand the Conversion Shares will be validly issued, fully paid and nonassessable, and assuming conversion will be free of all outstanding Series A Preferred Stock any liens or encumbrances; provided, however, that the Shares and Series B Preferred Stockthe Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. Except as may be set forth in the Amended and Restated Articles, the SharesCompany has no obligation to repurchase any of its stock.

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of fifty twenty million (50,000,00020,000,000) shares of Voting Common common stock, of which (i) one million four hundred six thousand two hundred eighty nine (1,406,289) shares are issued and outstanding, (ii) eight hundred forty five thousand nine hundred seventy (845,970) shares are reserved for future issuance to employees pursuant to the Company's Amended and Restated 1996 Stock Option Plan, (par value $.001 per share)iii) seven hundred twenty one thousand seven hundred eighty (721,780) shares are subject to outstanding options pursuant to the 1996 Stock Option Plan (provided, two however, the Company on the date hereof shall issue to Mr. Xxxxxx Xxxxxx an option to purchase six percent (6%) of the fully diluted shares of the Company outstanding immediately after the Closing of this transaction) and (iv) ten thousand (10,000) shares are subject to outstanding warrants to purchase common stock, and eight million six hundred eight thousand (8,000,000) shares of Preferred Stock, of which (A) one million three hundred ninety one thousand four hundred (2,608,3901,301,400) shares are designated Series A Preferred Stock, one million two hundred five thousand (1,205,000) of which are issued and outstanding and one million nine ninety-six thousand four hundred fifty four thousand one hundred twenty (1,954,120) shares of which remain reserved for future issuance to employees, officers, directors and consultants pursuant to the Company's 1999 Equity Incentive Plan (after issuance of the 100,000 shares of Voting Common Stock thereunder as described below), twenty five million (25,000,000) shares of Non-Voting Common Stock, none of which are issued and outstanding, and thirty two million six hundred thousand (32,600,000) shares of Preferred Stock (par value $.001 per share), eight million six hundred thousand (8,600,00096,400) of which are designated reserved for issuance pursuant to outstanding warrants to purchase Series A Preferred Stock, seven (B) one million nine hundred forty two eighty-one thousand five hundred thirty-five (1,981,535) are designated Series B Preferred Stock, one million nine hundred seventy thirty-four thousand five hundred twenty-six (7,942,9701,934,526) of which are issued and outstanding, twelve million outstanding and forty-seven thousand and nine (12,000,00047,009) of which are designated reserved for issuance pursuant to outstanding warrants to purchase Series B-1 Voting B Preferred Stock and (C) three million seven hundred thousand (3,700,000) are designed Series C Preferred Stock, none of which are issued and outstanding, and twelve million (12,000,000) outstanding as of which are designated Series B-2 Non-Voting Preferred Stock, none of which are issued and outstandingthe date immediately prior to the date hereof. All issued and outstanding shares of the Company's Common Stock common stock and preferred stock (aI) have been duly authorized and validly issuedissued to the persons listed on EXHIBIT G hereto, (bII) are fully paid and nonassessable, and (cIII) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing)set forth on EXHIBIT G, and except as may be granted pursuant to this Agreement and the Investor Rights AgreementRelated Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder agreements, voting agreements or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. Following When issued in compliance with the acquisition provisions of this Agreement and the Restated Certificate, the Shares as provided hereinand the Conversion Shares will be validly issued, fully paid and nonassessable, and assuming conversion will be free of all outstanding Series A Preferred Stock any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and Series B Preferred Stock, the SharesConversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Initial Closing, will consist consists of fifty million (50,000,000i) 121,668,835 shares of Voting Common Stock (Stock, par value $.001 0.0001 per share), two million six hundred eight thousand three hundred ninety (2,608,390) shares of which are issued and outstanding and one million nine hundred fifty four thousand one hundred twenty (1,954,120) shares of which remain reserved for future issuance to employees, officers, directors and consultants pursuant to the Company's 1999 Equity Incentive Plan (after issuance of the 100,000 shares of Voting Common Stock thereunder as described below), twenty five million (25,000,000) shares of Non-Voting Common Stock, none 1,428,795 of which are issued and outstanding, and thirty two million six hundred thousand (32,600,000ii) 153,394,052 shares of Preferred Stock (Stock, par value $.001 0.0001 per share), eight million six hundred thousand (8,600,000) 5,405,992 of which are designated Series A Preferred Stock, seven million nine hundred forty two thousand nine hundred seventy (7,942,970) all of which are issued and outstanding, twelve million (12,000,000iii) 3,530,768 shares of Series B Preferred Stock, par value $0.0001 per share, 3,500,000 shares of which are designated issued and outstanding, (iv) 5,342,197 shares of Series B-1 Voting C Preferred Stock, par value $0.0001 per share, 5,322,396 of which are issued and outstanding, (v) 12,525,000 shares of Series D Preferred Stock, 12,500,000 of which are issued and outstanding, (vi) 26,866,790 shares of Series E Preferred Stock, all of which are issued and outstanding, (vii) 19,659,240 shares of Series F Preferred Stock, none of which are issued and outstanding, and twelve million (12,000,000viii) 80,064,065 shares of which are designated Series B-2 Non-Voting Junior Preferred Stock, none 6,506,160 shares of which are issued and outstanding. All Attached to this Agreement as Exhibit G is a complete list of all stockholders, option holders, warrant holders, convertible note holders and other security holders of the Company (and their respective holdings) as of immediately prior to the Closing. (b) Under the Company’s 2004 Equity Incentive Plan (the “2004 Plan”), (i) 2,637,152 shares of Junior Preferred Stock have been issued pursuant to restricted stock purchase agreements and/or the exercise of outstanding options and are included in 3.3(a)(viii) above, (ii) options to purchase 227,918 shares of Junior Preferred Stock are currently outstanding, and (iii) no options to purchase shares of Junior Preferred Stock remain available for future issuance to officers, directors, employees and consultants of the Company under the 2004 Plan. (c) Under the Company’s 2005 Equity Incentive Plan (the “2005 Plan,” together with the 2004 Plan, the “Plans”), (i) 1,428,795 shares of Common Stock are currently outstanding pursuant to restricted stock purchase agreements and/or the exercise of outstanding options and are included in 3.3(a)(i) above, (ii) 17,844,968 options to purchase shares of Common Stock are currently outstanding, and (iii) 4,032,406 shares of Common Stock remain available for future issuance to officers, directors, employees and consultants of the Company's Common Stock . (ad) have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing), Plans and except as may be granted pursuant to this Agreement and the Investor Rights AgreementRelated Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. Following . (e) All issued and outstanding shares of the acquisition Company’s Common Stock and Preferred Stock (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities and (iii) solely with respect to the Common Stock or Junior Preferred Stock not issued upon the conversion of Preferred Stock, are subject to a right of first refusal in favor of the Company upon transfer. (f) The rights, preferences, privileges and restrictions of the Shares and the Conversion Shares are as provided hereinstated in the Restated Charter. The Conversion Shares have been duly and validly reserved for issuance. When issued in compliance with the provisions of this Agreement and the Restated Charter, the Shares and the Conversion Shares will be validly issued, fully paid and nonassessable, and assuming will be free of any liens or encumbrances other than liens and encumbrances created by or imposed by Purchasers; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. (g) All options granted and Common Stock or Junior Preferred Stock issued (other than upon conversion of all Preferred Stock) vest as follows: twenty-five percent (25%) of the shares vest one (1) year following the vesting commencement date, with the remaining seventy-five percent (75%) vesting in equal monthly installments over the three (3) years following the anniversary of the vesting commencement date. No stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any equity securities or rights to purchase equity securities provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of (i) termination of employment or consulting services (whether actual or constructive); (ii) any merger, consolidated sale of stock or assets, change in control or any other transaction(s) by the Company; or (iii) the occurrence of any other event or combination of events. (h) All outstanding Series A Preferred shares of Common Stock and Series B Preferred Stock, and all shares of Common Stock and Preferred Stock issuable upon the Sharesexercise or conversion of outstanding options, warrants or other exercisable or convertible securities are subject to a market standoff or “lockup” agreement of not less than 180 days following the Company’s initial public offering.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the First Closing, will consist consists of fifty (i) ten million (50,000,00010,000,000) shares of Voting Common Stock (par value $.001 per share), two million six hundred eight thousand three hundred ninety (2,608,390) shares of which are issued and outstanding and one million nine hundred fifty four thousand one hundred twenty (1,954,120) shares of which remain reserved for future issuance to employees, officers, directors and consultants pursuant to the Company's 1999 Equity Incentive Plan (after issuance of the 100,000 shares of Voting Common Stock thereunder as described below), twenty five million (25,000,000) shares of Non-Voting Common Stock, none five million four hundred thousand (5,400,000) shares of which are issued and outstanding, and thirty (ii) twelve million five hundred ninety-two million six thousand five hundred thousand ninety-three (32,600,00012,592,593) shares of Preferred Stock Stock, two million five hundred ninety-two thousand five hundred ninety-three (par value $.001 per share), eight million six hundred thousand (8,600,0002,592,593) shares of which are designated Series A Preferred Stock, seven million nine hundred forty two thousand nine hundred seventy (7,942,970) of which are issued and outstanding, twelve million (12,000,000) of which are designated Series B-1 Voting Preferred Stock, none all of which are issued and outstanding, and twelve ten million (12,000,00010,000,000) shares of which are designated Series B-2 Non-Voting B Preferred Stock, none of which are is issued and outstanding. All . (b) Under the Company's 2000 Equity Incentive Plan (the "Plan"), (i) three hundred thousand (300,000) shares have been issued pursuant to restricted stock purchase agreements and/or the exercise of outstanding options, (ii) options to purchase three hundred fifty-five thousand (355,000) shares of Common Stock have been granted and outstanding are currently outstanding, and (iii) nine hundred fifty-two thousand four hundred seven (952,407) shares of Common Stock remain available for future issuance to officers, directors, employees and consultants of the Company. (c) Other than (i) the shares reserved for issuance under the Plan, (ii) warrants to purchase up to seven hundred thousand (700,000) shares of Common Stock pursuant to that certain Business Consultant and Management Agreement dated July 20, 2000, between the Company and Oryx Technologies, Inc., and (iii) warrants to purchase up to thirty five thousand seven hundred fourteen (35,714) shares of the Company's Common Series B Preferred Stock (a) have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were issued in compliance with all applicable state and federal laws concerning issuable to VMR High Octane Fund pursuant to the issuance of securities. The rights, preferences, privileges and restrictions terms of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing), and except as may be granted pursuant to this Agreement and the Investor Rights AgreementRelated Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. Following the acquisition . (d) All issued and outstanding shares of the Shares as provided hereinCompany's Common Stock (i) have been duly authorized and validly issued and are fully paid and nonassessable, and assuming conversion of all outstanding Series A Preferred Stock and Series B Preferred Stock, the Sharesand

Capitalization; Voting Rights. The (a) As of the date hereof, the authorized capital stock of the CompanyCompany consists of 208,403,275 shares, immediately prior to the Closing, will consist of fifty million (50,000,000) which 150,000,000 are shares of Voting Common Stock (Stock, par value $.001 0.001 per share), two million six hundred eight thousand three hundred ninety (2,608,390) 8,590,855 shares of which are issued and outstanding and one million nine hundred fifty four thousand one hundred twenty (1,954,120) 12,673,992 shares of which remain are reserved for future issuance to employees, officers, directors and consultants employees pursuant to the Company's 1999 Equity Incentive Plan Stock Option Plans (after issuance of the 100,000 as hereinafter defined) and 58,403,275 are shares of Voting Common Stock thereunder as described below), twenty five million (25,000,000) shares of Non-Voting Common Preferred Stock, none par value $0.001 per share; 8,750,000 of which are designated Series B Preferred Stock, 8,572,039 of which are issued and outstanding, and thirty two million six hundred thousand (32,600,000) ; 8,500,000 shares of Preferred Stock (par value $.001 per share), eight million six hundred thousand (8,600,000) of which are designated Series A C Preferred Stock, seven million nine hundred forty two thousand nine hundred seventy (7,942,970) 6,270,527 of which are issued and outstanding, twelve million (12,000,000) ; 3,00,000 of which are designated Series B-1 Voting D Preferred Stock, of which 2,868,538 are issued and outstanding; 1,904,898 of which are designated Series E Preferred Stock, none of which are issued and outstanding, ; and twelve million (12,000,000) 30,000,000 of which are designated Series B-2 Non-Voting F Preferred Stock, none 23,596,492 of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock capital stock (ai) have been duly authorized and validly issued, (bii) are fully paid and nonassessable, and (ciii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares Preferred Stock are as stated in the Company's Restated CertificateCertificate of Incorporation, as amended, in effect on the date hereof (the "CURRENT CERTIFICATE"). (b) The Company has delivered to Purchaser a copy of the Company's 1998 Stock Option Plan (the "1998 PLAN") and 2000 Equity Participation Plan (the "2000 PLAN" and, together with the 1998 Plan, the "STOCK OPTION PLANS"). Each series Schedule 3.3 sets forth a true and complete summary of Preferred all options issued under each Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly Option Plan, including the holder, issue date, exercise price, vesting status and validly reserved for issuanceexpiration date of such option. Other than the 2,054,120 12,673,992 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan Stock Option Plans, the options issued pursuant to the Stock Option Plans as set forth on Schedule 3.3 and 115,000 outstanding warrants (of which options for 240,000 the "EXISTING WARRANTS") to purchase 2,530,473 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and the Warrant Purchase Agreement, dated as of April 30June 23, 19991998, by and among between the Company and the Purchasers listed therein (which will expire at the First Closing)Norwest Bank Minnesota, National Association, as Warrant Agent, and except as may be granted pursuant to this Agreement and the Investor Rights AgreementRelated Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its their securities. Following the acquisition Except as described in this Agreement or set forth in Schedule 3.3, (x) there are no outstanding obligations of the Shares Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any securities of the Company or any voting or equity securities or interests of any subsidiary of the Company, (y) there is no voting trust or other agreement or understanding to which the Company or any of its Subsidiaries is a party or is bound with respect to the voting of the capital stock or other voting securities of the Company or any of its Subsidiaries and (z) there are no other options, calls, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party. (c) On each Closing Date, the Company's authorized capital stock will be as provided hereinset forth in the New Certificate, and assuming conversion the rights, preferences, privileges and restrictions of all outstanding Series A the Preferred Stock will be as stated in the New Certificate. When issued in accordance with the provisions of this Agreement and Series B Preferred Stockthe New Certificate, the SharesShares and the Conversion Shares will be duly authorized, validly issued, fully paid and nonassessable and will be delivered free and clear of any Encumbrances and will have the rights, preferences, privileges and restrictions set forth in the New Certificate; PROVIDED, HOWEVER, that such shares may be subject to restrictions on transfer under the Purchasers Rights Agreement or under state or federal securities laws or as otherwise required by such laws at the time a transfer is proposed. (d) Schedule 3.3 sets forth as of the date hereof the name of each person or entity owning any of the Company's outstanding equity securities and the number and class of equity security owned by each such person or entity.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist Company consists of fifty (i) sixteen million (50,000,00016,000,000) shares of Voting Common Stock (Stock, par value $.001 0.001 per share), two three million one hundred ninety-three thousand six hundred eight thousand three hundred ninety forty-two (2,608,3903,193,642) shares of which are will be issued and outstanding upon the issuance of the Shares and one million nine the issuance of six hundred fifty fourteen thousand eight hundred thirty-four thousand one hundred twenty (1,954,120614,834) shares of which remain reserved for future issuance to employees, officers, directors and consultants pursuant to the Company's 1999 Equity Incentive Plan (after issuance of the 100,000 shares of Voting Common Stock thereunder as described below)to Myogen, twenty Inc. and fifteen thousand four hundred fifty-five million (25,000,00015,455) shares of Non-Voting Common StockStock to University License Equity Holdings, none Inc. (each of which issuances are issued and outstandingcontemplated to occur on the Effective Date), and thirty two (ii) nine million six four hundred thousand (32,600,0009,400,000) shares of Preferred Stock (Stock, par value $.001 0.001 per share), eight million six hundred thousand (8,600,000) all shares of which are designated Series A Preferred Stock, seven million nine hundred forty two thousand nine hundred seventy (7,942,970) of which are issued and outstanding, twelve million (12,000,000) of which are designated Series B-1 Voting Preferred Stock, none of which are issued and outstanding. (b) Under the Company’s 2004 Stock Incentive Plan (as heretofore amended, the “Plan”), immediately prior to the Effective Date, (i) options to purchase one million seven hundred fifteen thousand six hundred forty-six (1,715,646) shares of Common Stock have been granted and twelve are currently outstanding and (ii) one million two hundred thirty-nine thousand forty-eight (12,000,0001,239,048) shares of which are designated Series B-2 Non-Voting Preferred StockCommon Stock remain available for future issuance to officers, none of which are issued directors, employees and outstanding. All issued and outstanding shares consultants of the Company's Common Stock (a) have been duly authorized and validly issued. The Company has not made any representations regarding the issuance of additional equity incentives to any officer, (b) are fully paid and nonassessableemployee, and director or consultant. (c) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company and Kevix Xxxxxxxx xxxed as of February 10, 1999, as amended, and the warrants to purchase in the aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as of April 30, 1999, by and among the Company and the Purchasers listed therein (which will expire at the First Closing)Plan, and except as may be granted pursuant to this Agreement and the Investor Rights Series A Preferred Stock Purchase Agreement by and among the Company, the purchasers named therein and certain other persons named therein (the “Purchase Agreement”), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. Following the acquisition . (d) All issued and outstanding shares of the Shares as provided hereinCompany’s Common Stock prior to the Effective Date (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities, and assuming conversion (iii) are subject to a right of all outstanding Series A Preferred Stock and Series B Preferred Stock, first refusal in favor of the SharesCompany upon transfer.