Common use of Equity Capitalization Clause in Contracts

Equity Capitalization. Except as disclosed on Schedule 5(h): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(hin the SEC Documents (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Credit Parties and their Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Company’s any Credit Party or any Subsidiary’s capital stock Capital Stock or other Equity Interest in any other Credit Party or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Credit Party or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in such Credit Party or such Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company any Credit Party or any of its their Subsidiaries or by which the Company any Credit Party or any of its their Subsidiaries is or may become boundbound other than Permitted Indebtedness; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company any Credit Party or any of its their Subsidiaries; (v) there are no agreements or arrangements under which the Company any Credit Party or any of its their Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company any Credit Party or any of its their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to redeem a security of the Company any Credit Party or any of its their Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the transactions contemplated by this Agreement or the issuance of the SecuritiesNotes; (viii) neither the Company nor none of any Subsidiary Credit Party or any of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ix) neither the Company nor none of any Credit Party or any of its their Subsidiaries have has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Closing, the Borrower has provided to the Lenders true, correct and complete copies of the Company’s Certificate (i) its certificate of Incorporation, as amended and incorporation as in effect on the date hereof (the “Certificate of Incorporation”)Closing Date, and the Company’s bylaws, as amended (ii) its memorandum and articles of association as in effect on the date hereof (the “Bylaws”), and the terms of Closing Date. Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party or any of their Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(hin the SEC Documents (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Fifth Restatement Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Credit Parties and their Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Company’s any Credit Party or any Subsidiary’s capital stock Capital Stock or other Equity Interest in any other Credit Party or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Credit Party or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in such Credit Party or such Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company any Credit Party or any of its their Subsidiaries or by which the Company any Credit Party or any of its their Subsidiaries is or may become boundbound other than Permitted Indebtedness; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company any Credit Party or any of its their Subsidiaries; (v) there are no agreements or arrangements under which the Company any Credit Party or any of its their Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company any Credit Party or any of its their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to redeem a security of the Company any Credit Party or any of its their Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the transactions contemplated by this Agreement or the issuance of the Securities; (viii) neither the Company nor none of any Subsidiary Credit Party or any of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ix) neither the Company nor none of any Credit Party or any of its their Subsidiaries have has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Fifth Restatement Closing, the Borrowers have provided to the Lenders true, correct and complete copies of the Company(i) each Credit Party’s Certificate and each of Incorporationtheir Subsidiary’s certificate of incorporation, certificate of formation (or other applicable governing or constitutional document), as amended and as in effect on the date hereof Fifth Restatement Closing Date, and (the “Certificate ii) each Credit Party’s and each of Incorporation”their Subsidiary’s bylaws or limited liability company agreement (or other applicable governing or constitutional document), and the Company’s bylawsas applicable, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of Fifth Restatement Closing Date. Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party or any of their Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.thereto. [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED

Equity Capitalization. Except as disclosed on Schedule 5(hin the SEC Documents (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesExchange Shares; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder trueTrue, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock common stock and the material rights of the holders thereof in respect thereto that are incorporated in, or have not been disclosed in in, the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(hin the SEC Documents (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of Borrower and each Subsidiary of Borrower (except for the Warrants) is as set forth on Schedule 5.7. All of such outstanding shares of Capital Stock or other Equity Interests of Borrower and its Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 5.7. Except as disclosed set forth on Schedule 5(h): 5.7: (i) none of the Company’s Borrower or any Subsidiary’s capital stock Capital Stock or other Equity Interest in Borrower or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company Borrower or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in Borrower or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company Borrower or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in Borrower or such Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in Borrower or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company Borrower or any of its Subsidiaries or by which the Company Borrower or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company Borrower or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company Borrower or any of its Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company Borrower or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company Borrower or any of its Subsidiaries is or may become bound to redeem a security of the Company Borrower or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the loan transaction contemplated by this Agreement or the issuance of the SecuritiesNotes, the Warrants or the Warrant Shares; (viii) neither the Company nor none of Borrower or any Subsidiary of its Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ix) neither the Company nor none of Borrower or any of its Subsidiaries have has any material liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Closing, the Borrower has provided to the Agent true, correct and complete copies of the Company(i) Borrower’s Certificate and each of Incorporationits Subsidiary’s certificate of incorporation, certificate of formation (or other applicable governing document), as amended and as in effect on the date hereof (the “Certificate of Incorporation”)Closing Date, and the Company(ii) Borrower’s bylawsand each of its Subsidiary’s bylaws or limited liability company agreement, as applicable, as amended and as in effect on the date hereof Closing Date (the “Bylaws”or other applicable governing document), and the terms of . Schedule 5.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock and the material rights or other Equity Interests in Borrower or any of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsits Subsidiaries.

Equity Capitalization. Except as disclosed on Schedule 5(h): The Company has furnished to the Buyers a disclosure letter which contains true and correct information regarding (i) none the number of authorized and outstanding shares of capital stock of the Company’s or ; (ii) any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiarywith respect to such shares of capital stock; (iiiii) there are no any outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; Subsidiaries other than equity awards (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become boundincluding to employees and directors); (iv) there are no any financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no any agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no any outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no any securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any . All of its Subsidiaries have any liabilities or obligations required to be disclosed such information in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course disclosure letter remains true and correct as of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdate hereof. The Company has furnished or made available to the Holder Buyers true, correct and complete copies of the Company’s Certificate of IncorporationFormation, as amended and as in effect on the date hereof hereof, including the Certificates of Designation thereto (the “Certificate of IncorporationFormation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, for shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Execution Date, the authorized capital stock of the Company consists of 100,000,000 shares of Common Stock. The capitalization of the Company immediately prior to each Closing is set forth on Schedule 3(r)(A) attached hereto and the capitalization of the Company immediately following each Closing is set forth on Schedule 3(r)(B) attached hereto. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r)(C): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating tocalls, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notesoutstanding, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has not issued any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementrights; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the Financial Statements in the Company’s filings accordance with the SEC (the “SEC Documents”) which are GAAP but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse EffectFinancial Statements. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesSeries D; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended Amended and Restated Bylaws and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(hin the Company’s filings with the SEC (the “SEC Documents”): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate Amended and Restated Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. The authorized, issued and outstanding capital stock of the Company is as set forth in the General Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus). All of such outstanding shares of issued and outstanding capital stock have been duly authorized and validly issued and are fully paid and nonassessable; none of the outstanding shares of capital stock was issued in violation of the preemptive or other similar rights of any securityholder of the Company. Except as disclosed on Schedule 5(h): described in the Registration Statement, the General Disclosure Package and the Prospectus, (i) none of the Company’s or any material Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except as contemplated by this Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Commission Documents which are not so disclosed in the SEC Commission Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do would not or could not have reasonably be expected to result in a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. The Company has or will have, as the case may be, an authorized, issued and outstanding capitalization as is set forth in the Registration Statement and the Prospectus (subject, in each case, to the issuance of shares of Common Stock upon exercise of stock options and warrants disclosed as outstanding in the Registration Statement and the Prospectus and the grant or issuance of options or shares under existing equity compensation plans or stock purchase plans described in the Registration Statement or the Prospectus), and such authorized capital stock conforms to the description thereof set forth in the Registration Statement and the Prospectus. Except as disclosed on Schedule 5(h): 3(f) hereto, in the Registration Statement or the Prospectus (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no material outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness (as defined below) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or any of its SubsidiariesSubsidiary’s’ respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished or made available to the Holder Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, for shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed thereto. All of the Securities conform to the description thereof contained in the SEC DocumentsRegistration Statement and the Prospectus. The form of certificates for the Common Shares and the Warrant Shares, as applicable, will conform to the corporate law of the jurisdiction of the Company’s incorporation.

Equity Capitalization. Except for subsequent issuances of common stock upon exercise or conversion of common stock equivalents set forth in the Company's most recent periodic report filed with the SEC, the capitalization of the Company is as set forth in the Company's most recent periodic report and most recent current report on Form 8-K filed with the SEC. Except as disclosed on Schedule 5(h): set forth in the SEC Documents (i) none no shares of the Company’s or any Subsidiary’s 's capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its SubsidiariesSubsidiary, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Subsidiary is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its SubsidiariesSubsidiary; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness (as defined in Section 3(r)) of the Company or any of its Subsidiaries Subsidiary or by which the Company or any of its Subsidiaries Subsidiary is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries Subsidiary is obligated to register the sale of any of their securities under the Securities Act1933 Act (except the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries Subsidiary which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Subsidiary is or may become bound to redeem a security of the Company or any of its SubsidiariesSubsidiary; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Documents (the “SEC Documents”as defined herein) which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ any Subsidiary's respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Buyer true, correct and complete copies of the Company’s 's Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”"CERTIFICATE OF INCORPORATION"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “Bylaws”"BYLAWS"), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(hin the SEC Documents (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesNotes; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the each Holder true, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended Amended and Restated Bylaws and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(hin the Company’s SEC Documents (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Fourth Amendment Effective Date, the authorized, issued and outstanding capital stock of Group and shares reserved for issuance is set forth on Schedule 6.01(hh). All of such shares set forth on Schedule 6.01(hh) have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed on in Schedule 5(h6.01(hh): (i) none of the CompanyGroup’s or any Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryGroup; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company Group or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company Group or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company Group or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company Group or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company Group or any of its Subsidiaries or by which the Company Group or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company Group or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company Group or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act of 1933, as amended (the “1933 Act”) and for which Group or any of its Subsidiaries is or could be subject to financial penalties for failure to either timely file or have declared effective by the SEC, a registration statement under the 1933 Act; (vi) there are no outstanding securities or instruments of the Company Group or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company Group or any of its Subsidiaries is or may become bound to redeem a security of the Company Group or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; Group and (ix) neither the Company nor any of its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s Group's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished ; and (viii) neither Group nor any of its Subsidiaries have received or are currently subject to any comment letters issued by the Holder true, correct and complete copies SEC.” o.) Section 7.01(b)(i) of the Company’s Certificate Financing Agreement is amended by deleting the phrase “forty-five (45)” in its entirety and the phrase “thirty (30)” shall be substituted in lieu thereof. p.) Section 7.01(b)(iii) of Incorporation, as the Financing Agreement is amended and restated in its entirety to read as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.follows:

Equity Capitalization. As of the Restatement Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Credit Parties and their Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Company’s any Credit Party or any Subsidiary’s capital stock Capital Stock or other Equity Interest in any other Credit Party or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Credit Party or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in such Credit Party or such Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company any Credit Party or any of its their Subsidiaries or by which the Company any Credit Party or any of its their Subsidiaries is or may become boundbound other than Permitted Indebtedness; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company any Credit Party or any of its their Subsidiaries; (v) there are no agreements or arrangements under which the Company any Credit Party or any of its their Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company any Credit Party or any of its their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to redeem a security of the Company any Credit Party or any of its their Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the transactions contemplated by this Agreement or the issuance of the SecuritiesNotes; (viii) neither the Company nor none of any Subsidiary Credit Party or any of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ix) neither the Company nor none of any Credit Party or any of its their Subsidiaries have has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Restatement Closing, the Borrower has provided to the Lenders true, correct and complete copies of the Company’s Certificate (i) its certificate of Incorporation, as amended and incorporation as in effect on the date hereof (the “Certificate of Incorporation”)Restatement Closing Date, and the Company’s bylaws, as amended (ii) its memorandum and articles of association as in effect on the date hereof (the “Bylaws”), and the terms of Restatement Closing Date. Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party or any of their Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized, issued and outstanding capital stock of Group and shares reserved for issuance is set forth on Schedule 5.01(cc). All of such shares set forth on Schedule 5.01(cc) have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed on in Schedule 5(h5.01(cc): (i) none of the CompanyGroup’s or any Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryGroup; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company Group or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company Group or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company Group or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company Group or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company Group or any of its Subsidiaries or by which the Company Group or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company Group or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company Group or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act of 1933, as amended (the “1933 Act”) and for which Group or any of its Subsidiaries is or could be subject to financial penalties for failure to either timely file or have declared effective by the SEC, a registration statement under the 1933 Act; (vi) there are no outstanding securities or instruments of the Company Group or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company Group or any of its Subsidiaries is or may become bound to redeem a security of the Company Group or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; Group and (ix) neither the Company nor any of its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s Group's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished ; and (viii) neither Group nor any of its Subsidiaries have received or are currently subject to any comment letters issued by the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC DocumentsSEC.

Equity Capitalization. Except as disclosed on Schedule 5(h): (i) none As of the Companydate of this Agreement, Networks3’s authorized share capital consists of 100 shares of Common Stock, of which as of the date of this Agreement, no shares are issued and outstanding. Networks3 has reserved no shares for issuance pursuant to any equity incentive or any Subsidiarypurchase plans nor for issuance pursuant to notes or warrants exercisable or exchangeable for, or convertible into, shares of Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. (a) None of Networks3’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryNetworks3; (iib) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, Networks3 or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Networks3 is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries Networks3 or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its SubsidiariesNetworks3; (iiic) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries Networks3 or by which the Company or any of its Subsidiaries Networks3 is or may become bound; (ivd) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesNetworks3; (ve) there are no agreements or arrangements under which the Company or any of its Subsidiaries Networks3 is obligated to register the sale of any of their its securities under the Securities ActAct or under any Applicable Securities Laws; (vif) there are no outstanding securities or instruments of the Company or any of its Subsidiaries Networks3 which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Networks3 is or may become bound to redeem a security of the Company or any of its SubsidiariesNetworks3; (viig) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesNetworks3 Shares; (viiih) neither the Company nor any Subsidiary Networks3 has any stock no share appreciation rights or “phantom stockshares” plans or agreements or any similar plan or agreement; and (ixi) neither the Company nor any of its Subsidiaries have any Networks3 has no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documentsobligations, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectconnection with Transactions. The Company has furnished to the Holder trueTrue, correct and complete copies of the Company’s Certificate certificate of Incorporation, incorporation and bylaws of Networks3 and a list of all of its equity holders and their respective holdings on a Fully Diluted basis as amended and as in effect on of the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as this Agreement are in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights Section 3.7 of the holders thereof in respect thereto that have not been disclosed in the SEC DocumentsNetworks3 Disclosure Letter.

Equity Capitalization. As of the date hereof, the authorized, issued and outstanding share of capital stock of FNDM is set forth on the Fund Disclosure Schedule. Except as disclosed set forth in the Fund Disclosure Schedule (i) no shares are reserved for issuance pursuant to FNDM’s stock option and purchase plans and no shares are reserved for issuance pursuant to securities (other than the Warrant and as may be required under the Reset Note) exercisable or exchangeable for, or convertible into, shares of Fund Common Stock and (ii) all of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as specified on Schedule 5(h): the Fund Disclosure Schedule: (i) none of the Company’s or any SubsidiaryFNDM’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryFNDM; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company FNDM or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company FNDM or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company FNDM or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company FNDM or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company FNDM or any of its Subsidiaries or by which the Company FNDM or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company FNDM or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company FNDM or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company FNDM or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company FNDM or any of its Subsidiaries is or may become bound to redeem a security of the Company FNDM or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesWarrant or the Warrant Shares; (viii) neither the Company nor any Subsidiary has FNDM does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of FNDM and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the CompanyFNDM’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a Fund Material Adverse Effect. The Company FNDM has furnished to PBC and the Holder Xxxxxx Members true, correct and complete copies of the CompanyFNDM’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the CompanyFNDM’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Fund Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the capitalization of the Company is as set forth in the Disclosure Schedule or the SEC Documents. The Company has less than two hundred (200) stockholders of record. Except as disclosed on in the Disclosure Schedule 5(h): or the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) other than the Series B Notes issued in September of 2007 and the Secured Promissory Note issued to Buyer in April of 2008 (the “Secured Note”) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements statements, other than the financing statement filed in connection with the Secured Note, securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities ActAct (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) except as set forth on Schedule 3(q) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company is as disclosed in Schedule 3(r). All of the outstanding shares of capital stock of the Company have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r): (i) none of the Company’s or any Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished or made available to the Holder Buyers true, correct and complete copies of the Company’s Certificate 's Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate "Articles of Incorporation”"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and as set forth on Schedule 3(r), the material terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. The capitalization of the Company as of the date hereof is as set forth on Schedule 3(r). All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on Schedule 5(h3(r): (i) none of the Company’s or any material Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any material amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except as contemplated by this Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed The authorized capital stock of the Company is set forth in its Charter. As of the date of this Agreement, all of the outstanding shares of capital stock of the Company, including, without limitation, the Common Shares, are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. As of the date of this Agreement, the Common Shares represent all of the outstanding equity of the Company, free and clear of all encumbrances, including any restriction on Schedule 5(h): (i) none the right of Seller to transfer the Common Shares to Buyer pursuant to this Agreement. All of the Common Shares are owned by Seller. None of the Company’s or any Subsidiarysubsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Seller or Company or any Subsidiary; (ii) there subsidiary. There are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there subsidiaries. There are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries subsidiaries or by which the Company or any of its Subsidiaries subsidiaries is or may become bound; (iv) there . There are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there subsidiaries. There are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there . There are no outstanding securities or instruments of the Company or any of its Subsidiaries subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there subsidiaries. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance sale of the Securities; (viii) neither Common Shares. Neither the Company nor any Subsidiary subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither . Neither the Company nor any of its Subsidiaries subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiariessubsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), Charter and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock Convertible Securities and the material rights of the holders thereof in respect thereto thereto. “Convertible Securities” means any capital stock or other security of the Company or any of its subsidiaries that have not been disclosed in is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the SEC Documentsholder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Shares) or any of its subsidiaries.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesNew Note; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended Amended and Restated Bylaws and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Execution Date, the authorized capital stock of the Company consists of 8,601,848 shares of Common Stock.All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating tocalls, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notesoutstanding, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares; (viii) neither the Company nor any Subsidiary has not issued any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementrights; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the Financial Statements in the Company’s filings accordance with the SEC (the “SEC Documents”) which are GAAP but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse EffectFinancial Statements. The Company has furnished to the Holder Investor true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(h): As of the date hereof, the authorized capital stock of the Company consists of (i) 100,000,000 shares of Common Stock, of which as of the date hereof, 18,008,500 are issued and outstanding prior to giving effect to any and all of the transactions contemplated hereto; and (ii) 100,000,000 shares of preferred stock, $0.00001 par value, none of which prior to the date hereof, are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. (i) None of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viiiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiv) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixvi) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Purchaser true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the capitalization of the Company is as set forth in the Disclosure Schedule. Except as disclosed on Schedule 5(h): in the Disclosure Schedule: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized and issued capital stock of the Company is as set forth on Schedule 3(r). All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed set forth on Schedule 5(h3(r): (i) none no shares of the Company’s or any Subsidiary’s 's capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness (as defined in Section 3(s)) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to this Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Documents (the “SEC Documents”as defined herein) which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ any Subsidiary's respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished or made available to the Holder Buyer upon such Buyer's request, true, correct and complete copies of the Company’s 's Certificate of Incorporation, as amended and as in effect on the date hereof (the “"Certificate of Incorporation”"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Reports (as defined below), or pursuant to the Exchange Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesSeries Y; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Commission which are not so disclosed in the SEC Documentssuch documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The “SEC Reports” shall mean all reports, schedules, forms, statements and other documents filed by the Company has furnished to under the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), Securities Act and the Company’s bylawsExchange Act, as amended including the exhibits thereto and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsdocuments incorporated by reference therein.

Equity Capitalization. The Company's equity capitalization, on a fully diluted basis, as of the date hereof, is set forth on Schedule 3(m). All outstanding shares set forth therein have been validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h): 3(m) or as permitted under this Agreement: (i) none of the Company’s or any Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its SubsidiariesCompany; (iii) except for indebtedness of the Company incurred in the ordinary course of business of the Company, which in the aggregate would not reasonably be expected to have a Material Adverse Effect, other than the Deerfield Loan, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing material indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) except for financing statements related to indebtedness of the Company described in the SEC Documents, there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its SubsidiariesCompany; (viivi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares; (viiivii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ixviii) neither the Company nor any of its Subsidiaries have any has no material liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses 's business and which, individually or in the aggregate, do would not or could not reasonably be expected to have a Material Adverse Effect. The Company has furnished or made available to the Holder true, Buyer true and correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), Incorporation and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the date hereof, the authorized, issued and outstanding capital stock of the Company and shares reserved for issuance is set forth on Schedule 3(r). All of such shares set forth on Schedule 3(r) have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed on in Schedule 5(h3(r): (i) none of the Company’s or any Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act ; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither there are no outstanding securities or instruments of the Company nor that contain: (A) anti-dilution or similar provisions that will be triggered by the issuance of any Subsidiary has securities of the Company; or (B) anti-dilution or similar provisions that could result in a reduction of an exercise price, conversion price or increase in the number of shares issuable upon the exercise or conversion of a convertible instrument in the case of the issuance of any securities by the Company (other than standard anti-dilution adjustments in the case of a stock dividend, recapitalization, forward or reverse split or business combination); (ix) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixx) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. Schedule 3(r) contains a schedule of all outstanding registration rights granted by the Company which are still in effect, as well as true and correct copies of any agreements containing registration rights granted by the Company. The Company has furnished to Secretary’s Certificate in substantially the Holder form attached hereto as Exhibit E contains true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, other than future potential issuances of additional shares of Common Stock to Sichenzia Rxxx Xxxxxxx Xxxxxx LLP for any future financings by the Company at a price per share less than $0.50, and the potential issuance to a certain lead investor in the Company’s prior financings of additional shares of common stock or convertible preferred stock to obtain the consent of the lead investor to future financings below $2.25 per share, with such issuance obligations to cease when the investor no longer owns any Series L Preferred Shares; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, other than that certain loan and security agreement with Oxford Finance LLC dated January 15, 2016, and equipment leases and equipment financing in the ordinary course of business; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities ActAct other than various prior issuances of securities that have not been previously registered; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of 40,000,000 shares of Common Stock, of which as of the date hereof (i) 27,189,077 shares of Common Stock are issued and outstanding, (ii) 4,689,9000 shares of (i) Except as disclosed on in Schedule 5(h): (i3(ww)(i) hereto, none of the Company’s or any Subsidiary’s capital stock equity is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary’s; (ii) except as disclosed in Schedule 3(ww)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock equity of the Company or any of its the Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its the Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock equity of the Company or any of its the Subsidiaries; (iii) except as disclosed in Schedule 3(ww)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its the Subsidiaries or by which the Company or any of its the Subsidiaries is or may become bound; (iv) except as disclosed in Schedule 3(ww)(iv), there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its the Subsidiaries; (v) ), except as disclosed in Schedule 3(ww)(v), there are no agreements or arrangements under which the Company or any of its the Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) except as disclosed in Schedule 3(ww)(vi), there are no outstanding securities or instruments of the Company or any of its the Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its the Subsidiaries is or may become bound to redeem a security of the Company or any of its the Subsidiaries; (vii) except as disclosed in Schedule 3(ww)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule 3(ww)(viii), neither the Company nor any Subsidiary of its Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither except as disclosed in Schedule 3(ww)(ix), the Company nor or any of its the Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documentsobligations, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ any of the Subsidiary’s respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the First Closing Date, the authorized capital stock of the Principal Borrower consists of 135,000,000 shares of Common Stock, of which, as of the First Closing Date, 90,077,676 shares (including the Shares issued hereunder) are issued and outstanding. All of such outstanding shares of Capital Stock or other Equity Interests of the Principal Borrower and its Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Companyany Borrower’s or any Subsidiary’s capital stock Capital Stock or other Equity Interest in such Borrower or Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Borrower or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock Capital Stock or other Equity Interest in any of the Company Borrowers or any of its their Subsidiaries, or contracts, commitments, understandings or arrangements by which any of the Company Borrowers or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interest in such Borrower or Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock Capital Stock or other Equity Interest in any of the Company Borrowers or any of its their Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of any of the Company Borrowers or any of its their Subsidiaries or by which any of the Company Borrowers or any of its their Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with any of the Company Borrowers or any of its their Subsidiaries; (v) there are no agreements or arrangements under which any of the Company Borrowers or any of its their Subsidiaries is obligated to register the sale of any of their its securities under the Securities Act1933 Act (except the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of any of the Company Borrowers or any of its their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which any of the Company Borrowers or any of its their Subsidiaries is or may become bound to redeem a security of any of the Company Borrowers or any of its their Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither none of the Company nor Borrowers or any Subsidiary of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither none of the Company nor Borrowers or any of its their Subsidiaries have has any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Borrowers’ and their Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectbusinesses. The Company has furnished Prior to the Holder applicable Closing, the Borrowers have provided to the Lenders true, correct and complete copies of the Company(i) each Borrower’s Certificate and Subsidiary’s certificate or articles of Incorporationincorporation (or other applicable governing document), as amended and as in effect on the date hereof (the “Certificate of Incorporation”)applicable Closing Date, and the Company(ii) each Borrower’s and Subsidiary’s bylaws, as amended and as in effect on the date hereof applicable Closing Date (the “Bylaws”or other applicable governing document), and the terms of . Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any of the Borrowers or any of their Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized capital ---------------------- stock of the Company consists of 100,000,000 shares of Common Stock, of which as of the date hereof, 34,107,784 are issued and outstanding, and no shares are reserved for issuance pursuant to securities (other than the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r): (i) none of the Company’s or any Subsidiary’s 's share capital stock is subject to preemptive ----------- rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.;

Equity Capitalization. As of the Fourth Restatement Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Credit Parties and their Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Company’s any Credit Party or any Subsidiary’s capital stock Capital Stock or other Equity Interest in any other Credit Party or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Credit Party or any such Subsidiary; ; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in such Credit Party or such Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company any Credit Party or any of its their Subsidiaries or by which the Company any Credit Party or any of its their Subsidiaries is or may become boundbound other than Permitted Indebtedness; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company any Credit Party or any of its their Subsidiaries; (v) there are no agreements or arrangements under which the Company any Credit Party or any of its their Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company any Credit Party or any of its their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to redeem a security of the Company any Credit Party or any of its their Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the transactions contemplated by this Agreement or the issuance of the Securities; (viii) neither the Company nor none of any Subsidiary Credit Party or any of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ix) neither the Company nor none of any Credit Party or any of its their Subsidiaries have has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Fourth Restatement Closing, the Borrowers have provided to the Lenders true, correct and complete copies of the Company(i) each Credit Party’s Certificate and each of Incorporationtheir Subsidiary’s certificate of incorporation, certificate of formation (or other applicable governing or constitutional document), as amended and as in effect on the date hereof Fourth Restatement Closing Date, and (the “Certificate ii) each Credit Party’s and each of Incorporation”their Subsidiary’s bylaws or limited liability company agreement (or other applicable governing or constitutional document), and the Company’s bylawsas applicable, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of Fourth Restatement Closing Date. Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party or any of their Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the Execution Date, the authorized capital stock of the Company consists of 13,257,625 shares of Common Stock. The capitalization of the Company is set forth on Schedule 3(r)(A) attached hereto All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r)(B): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating tocalls, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notesoutstanding, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares; (viii) neither the Company nor any Subsidiary has not issued any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementrights; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the Financial Statements in the Company’s filings accordance with the SEC (the “SEC Documents”) which are GAAP but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse EffectFinancial Statements. The Company has furnished to the Holder Investor true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Reports (as defined below), or pursuant to the Exchange Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesSeries Z Exchange Shares; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Commission which are not so disclosed in the SEC Documentssuch documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The “SEC Reports” shall mean all reports, schedules, forms, statements and other documents filed by the Company has furnished to under the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), Securities Act and the Company’s bylawsExchange Act, as amended including the exhibits thereto and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsdocuments incorporated by reference therein.

Equity Capitalization. Except as disclosed in the SEC Documents or on Schedule 5(h): 3(p) to this Agreement, (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or Subsidiaries (other than as may be issued from time to time under any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariesequity incentive plan maintained); (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder SEC Documents contain true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock Convertible Securities (as defined below) and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereof.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents, (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or Subsidiaries (other than as may be issued from time to time under any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariesequity incentive plan maintained); (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to this Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder SEC Documents contain true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(h): (i) none None of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) except as disclosed in the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securitiesexcept as disclosed in the SEC Documents, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities ActAct (except pursuant to the Registration Rights Agreement); (viiv) except as disclosed in the SEC Documents, there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither Exchanged Note or the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementExchanged Conversion Shares; and (ixvi) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents or issued by the Company pursuant to stock option plans approved by the board of directors of the Company: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) unlimited shares of Common Stock, of which as of the date hereof, 142,389,060 are issued and outstanding and (ii) First Preferred Shares, no par value, of which as of the date hereof none of which is issued and outstanding or reserved for issuance. All of such outstanding shares have been validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h): 3(q) or in the SEC-CSA Documents: (i) none of the Company’s or any Subsidiary’s 's share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (viv) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement) or under any applicable Canadian Securities ActLaws; (viv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; and (viivi) there the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the . The Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are SEC-CSA Documents but not so disclosed in the SEC SEC-CSA Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished made available to the Holder Buyer true, correct and complete copies of the Company’s Certificate 's Articles of IncorporationArrangement, as amended and as in effect on the date hereof (the “Certificate of Incorporation”"ARTICLES OF ARRANGEMENT"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “Bylaws”"BYLAWS"), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Parent consists of one hundred million (100,000,000) shares of common stock, $0.001 par value per share, of which, as of the date hereof, 39,005,771 shares are issued and outstanding, and ten million (10,000,000) shares of preferred stock, $0.001 par value per share, of which no shares were issued and outstanding on the date hereof. All of such outstanding shares of Parent and the Company have been validly issued and are fully paid and nonassessable. Except as disclosed in the SEC Documents or on Schedule 5(h3(r): (i) none of Parent’s or the Company’s or any Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by Parent or the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company Parent or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company Parent or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company Parent or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company Parent or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company Parent or any of its Subsidiaries or by which the Company Parent or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company Parent or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company Parent or any of its Subsidiaries is obligated to register the sale of any of their its securities under the Securities Act1933 Act (except the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company Parent or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company Parent or any of its Subsidiaries is or may become bound to redeem a security of the Company Parent or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company Parent nor any Subsidiary of its Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of Parent and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the CompanyParent’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectbusinesses. The Company has furnished to the Holder Schedule 3(r) contains true, correct and complete copies of (i) the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (“the “Certificate Company’s Articles of Incorporation”), and (ii) the Company’s bylawsBylaws, as amended and as in effect on the date hereof (“the Company’s Bylaws”), (iii) Parent’s Articles of Incorporation, as amended and as in effect on the date hereof (“Parent’s Articles of Incorporation”), (iv) Parent’s Bylaws, as amended and as in effect on the date hereof (“Parent’s Bylaws”), and (v) the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of one hundred million (100,000,000) shares of common stock, $0.001 par value per share, of which, as of the date hereof, 12,294,000 shares are issued and outstanding, and ten million (10,000,000) shares of preferred stock, $0.001 par value per share, of which no shares were issued and outstanding on the date hereof. All of such outstanding shares of the Company have been validly issued and are fully paid and nonassessable. Except as disclosed on Schedule 5(h3(1): (i) none of the Company’s or any Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viii) neither the Company nor any Subsidiary of its Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix. Schedule 3(1) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder contains true, correct and complete copies of (i) the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (“the “Certificate Company’s Articles of Incorporation”), and (ii) the Company’s bylawsBylaws, as amended and as in effect on the date hereof (“the “Company’s Bylaws”), and (iii) the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Preferred Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the Company’s filings with the Commission: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party is as set forth on Schedule 5.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Credit Parties have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 5.7. Except as disclosed set forth on Schedule 5(h): 5.7: (ia) none of the Companyno Credit Party’s Capital Stock or other Equity Interest in any Subsidiary’s capital stock other Credit Party is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiarysuch Credit Party; (iib) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any of its SubsidiariesCredit Party, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in such Credit Party or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any of its SubsidiariesCredit Party; (iiic) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries Credit Party or by which the Company or any of its Subsidiaries Credit Party is or may become boundbound other than Permitted Indebtedness; (ivd) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCredit Party; (ve) there are no agreements or arrangements under which the Company or any of its Subsidiaries Credit Party is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vif) there are no outstanding securities or instruments of the Company or any of its Subsidiaries Credit Party which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Credit Party is or may become bound to redeem a security of the Company or any of its SubsidiariesCredit Party; (viig) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the transactions contemplated by this Agreement or the issuance of the SecuritiesNote; (viiih) neither the Company nor any Subsidiary no Credit Party has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ixi) neither the Company nor any of its Subsidiaries have no Credit Party has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Closing, Borrower has provided to Lender true, correct and complete copies of the Company(i) each Credit Party’s Certificate certificate of Incorporationformation (or other applicable governing or constitutional document), as amended and as in effect on the date hereof Closing Date, and (the “Certificate of Incorporation”ii) each Credit Party’s limited liability company agreement (or other applicable governing or constitutional document), and the Company’s bylawsas applicable, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of Closing Date. Schedule 5.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.thereto. 15651.048 4835-8083-6858.11 36

Equity Capitalization. Except as disclosed on Schedule 5(h): As of the date hereof, the authorized capital stock of the Company consists of (i) none 150,000,000 shares of Common Stock, of which, 40,136,027 are issued and outstanding and 16,062,800 shares are reserved for issuance pursuant to securities (other (i) None of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) except as disclosed in Schedule 3(r)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the capitalization of the Company is as set forth in the Disclosure Schedule or the SEC Documents. Except as disclosed on in the Disclosure Schedule 5(h): or the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) other than the Notes being issued pursuant to this Agreement there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities ActAct (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. The number of shares and type of all authorized, issued and outstanding capital stock of the Company and all shares of Common Stock reserved for issuance under the Company's various option and incentive plans, is as specified in the SEC Documents, as of the dates so specified. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed set forth on Schedule 5(h): 3(r) or in the SEC Documents: (i) none no shares of the Company’s or any Subsidiary’s 's capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness (as defined in Section 3(s)) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Documents (the “SEC Documents”as defined herein) which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ any Subsidiary's respective businesses and which, individually or in the aggregate, do not or could would not reasonably be expected to have a Material Adverse Effect. The Company has furnished or made available to the Holder Buyer upon such Buyer's request, true, correct and complete copies of the Company’s 's Certificate of Incorporation, as amended and as in effect on the date hereof (the “"Certificate of Incorporation”"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the Fifth Restatement Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Credit Parties and their Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Company’s any Credit Party or any Subsidiary’s capital stock Capital Stock or other Equity Interest in any other Credit Party or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Credit Party or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in such Credit Party or such Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company any Credit Party or any of its their Subsidiaries or by which the Company any Credit Party or any of its their Subsidiaries is or may become boundbound other than Permitted Indebtedness; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company any Credit Party or any of its their Subsidiaries; (v) there are no agreements or arrangements under which the Company any Credit Party or any of its their Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company any Credit Party or any of its their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to redeem a security of the Company any Credit Party or any of its their Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the transactions contemplated by this Agreement or the issuance of the Securities; (viii) neither the Company nor none of any Subsidiary Credit Party or any of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ix) neither the Company nor none of any Credit Party or any of its their Subsidiaries have has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Fifth Restatement Closing, the Borrowers have provided to the Lenders true, correct and complete copies of the Company(i) each Credit Party’s Certificate and each of Incorporationtheir Subsidiary’s certificate of incorporation, certificate of formation (or other applicable governing or constitutional document), as amended and as in effect on the date hereof Fifth Restatement Closing Date, and (the “Certificate ii) each Credit Party’s and each of Incorporation”their Subsidiary’s bylaws or limited liability company agreement (or other applicable governing or constitutional document), and the Company’s bylawsas applicable, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of Fifth Restatement Closing Date. Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party or any of their Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. All of such outstanding shares havebeen validly issued and are fully paid and non-assessable and none of suchshares were, offered or sold by the Company in violation of any applicablefederal or state securities or blue sky laws or the rules and regulations thereunder or any statutory or contractual preemptive rights or any other similar rights. Except as disclosed on in Schedule 5(h): 3.6: (i) none the issuance of the Company’s or any Subsidiary’s capital stock is Note and the Conversion Shares are not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its SubsidiariesCompany; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (viiv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its SubsidiariesCompany; (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesNote or Conversion Shares; and (viiivi) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, Purchaser true and correct and complete copies of the Company’s Certificate 's Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate "Articles of Incorporation”"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”'), and true and correct detailed descriptions of the terms of all securities convertible into, into or exercisable or exchangeable for, shares of for Common Stock and of the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. The capitalization of the Company as of the date hereof is as set forth on Schedule 3(r). All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on Schedule 5(h3(r): (i) none of the Company’s or any material Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any material amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except as contemplated by this Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do would not or could not have reasonably be expected to result in a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of 50,000,000 shares of Common Stock, of which as of the date hereof, 35,241,405 are issued and outstanding, 7,000,000 shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 4,904,998 shares are reserved for issuance pursuant to securities (other than the Notes) exercisable or exchangeable for, or convertible into, shares of Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r): (i) none of the Company’s or any Subsidiary’s 's share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiaryrights; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (viv) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except the Registration Rights Agreement); (viv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.;

Equity Capitalization. Except as disclosed on Schedule 5(hin the SEC Documents (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder trueTrue, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock common stock and the material rights of the holders thereof in respect thereto that are incorporated in, or have not been disclosed in in, the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(h): (i) none None of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) except as disclosed in the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securitiesexcept as disclosed in the SEC Documents, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities ActAct (except pursuant to the Registration Rights Agreement); (viiv) except as disclosed in the SEC Documents, there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither Exchanged Warrant or the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementExchanged Warrant Shares; and (ixvi) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(h): As of the date hereof, the authorized capital stock of the Company consists of (i) none 50,000,000 shares of Common Stock, of which, 24,024,994 are issued (i) None of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary, other than liens on the capital stock of the Subsidiaries securing Indebtedness (all of which liens are disclosed in the SEC Documents); (ii) except as disclosed on Schedule 3(r), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) except as disclosed on Schedule 3(s) or in the SEC Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) except as disclosed on Schedule 3(r) and in the SEC Documents, there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) except as disclosed on Schedule 3(r), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to this Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) except as disclosed on Schedule 3(r), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed on Schedule 3(r), neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder SEC Documents contain true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. The Company's equity capitalization, on a fully diluted basis, as of December 31, 2017 is set forth on Schedule 3(r). All outstanding shares set forth therein have been duly authorized and validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h): 3(r) or as described in or contemplated by the SEC Documents: (i) none of the Company’s or any Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its SubsidiariesCompany; (iii) except for Indebtedness of the Company incurred in the ordinary course of business of the Company, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness material Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) except for financing statements related to Indebtedness of the Company described in the SEC Documents, there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its SubsidiariesCompany; (viivi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ixviii) neither the Company nor any of its Subsidiaries have any has no material liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses 's business and which, individually or in the aggregate, do would not or could not reasonably be expected to have a Material Adverse Effect. The Company has furnished to For the Holder truepurposes of this Agreement, correct “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $100,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and complete copies other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s Certificate of Incorporation, as amended and as in effect on consolidated balance sheet (or the date hereof (the “Certificate of Incorporation”notes thereto), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms except guaranties by endorsement of all securities convertible into, negotiable instruments for deposit or exercisable collection or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed similar transactions in the SEC Documentsordinary course of business; and (z) the present value of any lease payments in excess of $100,000 due under leases required to be capitalized in accordance with GAAP.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of 100,000,000 shares of Common Stock, of which as of the date hereof, 34,107,784 are issued and outstanding, and no shares are reserved for issuance pursuant to securities (other than the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r): (i) none of the Company’s or any Subsidiary’s 's share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.;

Equity Capitalization. As of the date hereof, the Company has (i) 225,962,166 Ordinary Shares issued and outstanding and (ii) no preferred shares issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and fully paid. Except as disclosed on in Schedule 5(h3(q): (i) none of the Company’s or any Subsidiary’s 's share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries; and (iii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities. Except as disclosed in Schedule 3(q) or in the materials referred to in Section 3(k), as of the date hereof: (i) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness (as defined in Section 3(s)) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (ivii) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (viii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities (including ADRs) under the Securities Act1933 Act (except the Registration Rights Agreement); (viiv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ixvi) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and 's Constitution as in effect on the date hereof (the “"Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), ") and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock Ordinary Shares and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the capitalization of the Company is as set forth on Schedule 3(s). Except as disclosed on in Schedule 5(h3(s): (i) none of the Company’s or any Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) other than the Notes being issued pursuant to this Agreement there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s 's Certificate of Incorporation, as amended and as in effect on the date hereof (the “"Certificate of Incorporation”"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(hin the Company’s filings with the SEC (the “SEC Documents”): (i) none of the Company’s or any Subsidiarysubsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiarysubsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariessubsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries subsidiaries or by which the Company or any of its Subsidiaries subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiariessubsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiariessubsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiariessubsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate Amended and Restated Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(hin the SEC Reports (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Reports which are not so disclosed in the SEC DocumentsReports, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate Amended and Restated Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC DocumentsReports.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesPreferred Shares; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended Amended and Restated Bylaws and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed in the SEC Documents or on Schedule 5(h): 3(r) to this Agreement, (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or Subsidiaries (other than as may be issued from time to time under any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariesequity incentive plan maintained); (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to this Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder SEC Documents contain true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock Convertible Securities (as defined below) and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereof.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Issued Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended Amended and Restated Bylaws and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of May 1, 2006, the authorized capital stock of the Company consists of (i) 100,000,000 shares of common stock, $.01 par value (the “Common Stock”), 54,740,296 of which are issued and outstanding and (ii) 10,000,000 shares of preferred stock, $.01 par value, none of which is issued and outstanding. All of such outstanding shares have been validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(n): (i) none of the Company’s or any Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness (as defined in the Notes) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iviii) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; and (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (viiv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder Buyer true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate "Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights agreements of the holders thereof in respect thereto that have not been disclosed Company relating to any Indebtedness (as defined in the SEC DocumentsNotes) of the Company.

Equity Capitalization. As of the date hereof, the Company has (i) 397,564,507 Ordinary Shares issued and outstanding and (ii) no preferred shares issued and outstanding. All of such outstanding shares have been validly issued and fully paid. Except as disclosed on in Schedule 5(h3(q): (i) none of the Company’s or any Subsidiary’s 's share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company or any of its Subsidiaries; and (iii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities. Except as disclosed in Schedule 3(q), as of the date hereof: (i) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness (as defined in Section 3(r)) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (ivii) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (viii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities (including ADRs) under the Securities Act1933 Act (except the Registration Rights Agreement); (viiv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ixvi) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and 's Constitution as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), "Constitution") and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock Ordinary Shares and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of 6 March 2013, Orckit’s authorized share capital consists of 170,000,000 ordinary shares, no par value (the “Ordinary Shares”), of which as of the date hereof, 31,055,221 shares are issued and outstanding, 8,366,007 shares are reserved for issuance pursuant to Orckit’s share option and purchase plans and 10,732,919 shares are reserved for issuance pursuant to notes or warrants (other than the aforementioned options) exercisable or exchangeable for, or convertible into, Ordinary Shares. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on Schedule 5(h): set forth in the Company Reports: (i1) none of the CompanyOrckit’s or any Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryOrckit; (ii2) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of a member of the Company or any of its SubsidiariesOrckit Group, or contracts, commitments, understandings or arrangements by which a member of the Company or any of its Subsidiaries Orckit Group is or may become bound to issue additional share capital stock of a member of the Company or any of its Subsidiaries Orckit Group or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of a member of the Company or any of its SubsidiariesOrckit Group; (iii3) other than the Noteholders’ Agreements and debts incurred under agreements entered into in the ordinary course of business, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of a member of the Company or any of its Subsidiaries Orckit Group or by which a member of the Company or any of its Subsidiaries Orckit Group is or may become bound; (iv4) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with a member of the Company or any of its SubsidiariesOrckit Group; (v5) there are no agreements or arrangements under which any member of the Company or any of its Subsidiaries Orckit Group is obligated to register the sale of any of their securities under the Securities ActAct or under any Applicable Securities Laws; (vi6) there are no outstanding securities or instruments of a member of the Company or any of its Subsidiaries Orckit Group which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which a member of the Company or any of its Subsidiaries Orckit Group is or may become bound to redeem a security of a member of the Company or any of its SubsidiariesOrckit Group; (vii7) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesOrckit Shares or the Promissory Note; (viii) neither 8) no member of the Company nor any Subsidiary Orckit Group has any stock share appreciation rights or “phantom stockshares” plans or agreements or any similar plan or agreement; and (ix9) neither no member of the Company nor any of its Subsidiaries have any Orckit Group has liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Company Reports but not so disclosed in the SEC DocumentsCompany Reports, other than those incurred in the ordinary course of such member of the CompanyOrckit Group’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not reasonably be expected to have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except for subsequent issuances of common stock upon exercise or conversion of common stock equivalents set forth in the Company's most recent periodic report filed with the SEC, the capitalization of the Company is as set forth in the Company's most recent periodic report and most recent current report on Form 8-K filed with the SEC. Except as disclosed on Schedule 5(h): set forth in the SEC Documents (i) none no shares of the Company’s or any Subsidiary’s 's capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its SubsidiariesSubsidiary, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Subsidiary is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its SubsidiariesSubsidiary; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness (as defined in Section 3(q)) of the Company or any of its Subsidiaries Subsidiary or by which the Company or any of its Subsidiaries Subsidiary is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries Subsidiary is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries Subsidiary which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Subsidiary is or may become bound to redeem a security of the Company or any of its SubsidiariesSubsidiary; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Documents (the “SEC Documents”as defined herein) which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ any Subsidiary's respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Buyer true, correct and complete copies of the Company’s 's Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”"CERTIFICATE OF INCORPORATION"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “Bylaws”"BYLAWS"), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company is as disclosed in the Articles of Incorporation (as defined below). All of the outstanding shares of capital stock of the Company have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on Schedule 5(h): in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to the Registration Rights Agreement) and to the knowledge of the Company no shareholder of the Company has entered into any agreement with respect to the voting of equity securities of the Company; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do are not or could not have a Material Adverse Effectmaterial. The Company has furnished or made available to the Holder Purchasers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Restatement Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Credit Parties and their Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Company’s any Credit Party or any Subsidiary’s capital stock Capital Stock or other Equity Interest in any other Credit Party or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Credit Party or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in such Credit Party or such Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company any Credit Party or any of its their Subsidiaries or by which the Company any Credit Party or any of its their Subsidiaries is or may become boundbound other than Permitted Indebtedness; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company any Credit Party or any of its their Subsidiaries; (v) there are no agreements or arrangements under which the Company any Credit Party or any of its their Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company any Credit Party or any of its their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to redeem a security of the Company any Credit Party or any of its their Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the transactions contemplated by this Agreement or the issuance of the SecuritiesNotes; (viii) neither the Company nor none of any Subsidiary Credit Party or any of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ix) neither the Company nor none of any Credit Party or any of its their Subsidiaries have has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Restatement Closing, the Borrower has provided to the Lenders true, correct and complete copies of the Company’s Certificate (i) its certificate of Incorporation, as amended and incorporation as in effect on the date hereof (the “Certificate of Incorporation”)Restatement Closing Date, and the Company’s bylaws, as amended (ii) its memorandum and articles of association as in effect on the date hereof (the “Bylaws”), and the terms of Restatement Closing Date. Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party or any of their Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.thereto. US_142815097

Equity Capitalization. Except As of the date hereof, the authorized capital stock of the Company consists of 150,000,000 shares of Common Stock, of which, 51,977,943 (as disclosed on Schedule 5(h): determined as of April 2, 2012) are issued and outstanding and 5,649,772 shares are reserved for issuance pursuant to an Approved Stock Plan (i) none None of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) except as disclosed in the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securitiesexcept as disclosed in the SEC Documents, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any material amounts filed in connection with the Company or any of its Subsidiaries; (viv) except as disclosed in the SEC Documents, there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to the Registration Rights Agreement); (viv) except as disclosed in the SEC Documents, there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viivi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivii) other than provided in an Approved Stock Plan, neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixviii) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylawsAmended and Restated Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed in the SEC Documents or on Schedule 5(h): 3(p) to this Agreement, (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or Subsidiaries (other than as may be issued from time to time under any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariesequity incentive plan maintained); (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder SEC Documents contain true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock Convertible Securities (as defined below) and the material rights of the holders thereof thereof. The Buyers acknowledge and agree that the issuance of the Securities pursuant to this Agreement and upon conversion of the Notes shall not be considered a “Dilutive Issuance” in respect thereto that have not been disclosed in accordance with Section 4(i) of the SEC DocumentsSecurities Purchase Agreement dated as of August 28, 2018 between the Company and the purchaser(s) identified on the signature page thereto.

Equity Capitalization. As of the Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Credit Parties and their Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Company’s any Credit Party or any Subsidiary’s capital stock Capital Stock or other Equity Interest in any other Credit Party or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Credit Party or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in such Credit Party or such Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company any Credit Party or any of its their Subsidiaries or by which the Company any Credit Party or any of its their Subsidiaries is or may become boundbound other than Permitted Indebtedness; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company any Credit Party or any of its their Subsidiaries; (v) there are no agreements or arrangements under which the Company any Credit Party or any of its their Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company any Credit Party or any of its their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to redeem a security of the Company any Credit Party or any of its their Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the transactions contemplated by this Agreement or the issuance of US_142974558 the SecuritiesNotes; (viii) neither the Company nor none of any Subsidiary Credit Party or any of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ix) neither the Company nor none of any Credit Party or any of its their Subsidiaries have has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Closing, the Borrower has provided to the Lenders true, correct and complete copies of the Company’s Certificate (i) its certificate of Incorporation, as amended and incorporation as in effect on the date hereof (the “Certificate of Incorporation”)Closing Date, and the Company’s bylaws, as amended (ii) its memorandum and articles of association as in effect on the date hereof (the “Bylaws”), and the terms of Closing Date. Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party or any of their Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of May 14, 2020, the authorized capital stock of the Company consists of 40,000,000 shares of Common Stock, of which 21,434,328 shares are issued and outstanding, and 1,164,461 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, Common Stock, and 2,000,000 shares of preferred stock (the “Preferred Stock”), of which no shares are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except for compensatory equity grants made to the Company’s officers, directors and consultants consistent with past practice or as provided in the Stock Purchase Agreement dated as of May 3, 2019 between the Company and the investors identified therein and except as disclosed on Schedule 5(hin the reports, schedules, forms, statements and other documents required to be filed by the Company with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein along with all statements, filings and exhibits filed pursuant to the registration requirements of the Securities Act, being hereinafter referred to as the “SEC Documents”): (i) none of the Company’s or any Subsidiaryof its subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiaryof its subsidiaries; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariessubsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (viiv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiariessubsidiaries; and (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentshereunder.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents or issued by the Company pursuant to stock option plans approved by the board of directors of the Company: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.DSS Annex A - 5 -

Equity Capitalization. As of the Restatement Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Credit Parties and their Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Company’s any Credit Party or any Subsidiary’s capital stock Capital Stock or other Equity Interest in any other Credit Party or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Credit Party or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interests in such Credit Party or such Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interests in any Credit Party or any of its their Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company any Credit Party or any of its their Subsidiaries or by which the Company any Credit Party or any of its their Subsidiaries is or may become boundbound other than Permitted Indebtedness; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company any Credit Party or any of its their Subsidiaries; (v) there are no agreements or arrangements under which the Company any Credit Party or any of its their Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company any Credit Party or any of its their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company any Credit Party or any of its their Subsidiaries is or may become bound to redeem a security of the Company any Credit Party or any of its their Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the closing of the transactions contemplated by this Agreement or the issuance of the SecuritiesNotes; (viii) neither the Company nor none of any Subsidiary Credit Party or any of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; agreement and (ix) neither the Company nor none of any Credit Party or any of its their Subsidiaries have has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”footnotes thereto) which that are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectdisclosed. The Company has furnished Prior to the Holder Restatement Closing, the Borrowers have provided to the Lenders true, correct and complete copies of the Company(i) each Credit Party’s Certificate and each of Incorporationtheir Subsidiary’s certificate of incorporation, certificate of formation (or other applicable governing or constitutional document), as amended and as in effect on the date hereof Restatement Closing Date, and (the “Certificate ii) each Credit Party’s and each of Incorporation”their Subsidiary’s bylaws or limited liability company agreement (or other applicable governing or constitutional document), and the Company’s bylawsas applicable, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of Restatement Closing Date. Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party or any of their Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto. [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.

Equity Capitalization. As of the Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of the Borrower and its Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the CompanyBorrower’s or any Subsidiary’s capital stock Capital Stock or other Equity Interest in Borrower or such Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company Borrower or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of Capital Stock or other Equity Interest in the Company Borrower or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company Borrower or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company Capital Stock or any of its Subsidiaries other Equity Interest in Borrower or Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of Capital Stock or other Equity Interest in the Company Borrower or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company Borrower or any of its Subsidiaries or by which the Company Borrower or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company Borrower or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company Borrower or any of its Subsidiaries is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company Borrower or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company Borrower or any of its Subsidiaries is or may become bound to redeem a security of the Company Borrower or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesNotes or the Capital Stock as contemplated by Section 10.5 hereof; and (viii) neither none of the Company nor Borrower or any Subsidiary of its Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished Prior to the Holder Closing, the Borrower has provided to the Lenders true, correct and complete copies of the Company(i) each Borrower’s Certificate and Subsidiary’s certificate or articles of Incorporationincorporation (or other applicable governing document), as amended and as in effect on the date hereof (the “Certificate of Incorporation”)Closing Date, and the Company(ii) Borrower’s and each of its Subsidiary’s bylaws, as amended and as in effect on the date hereof Closing Date (the “Bylaws”or other applicable governing document), and the terms of . Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in the Borrower or any of its Subsidiaries and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(h): in the SEC Documents, (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or Subsidiaries (other than as may be issued from time to time under any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiariesequity incentive plan maintained); (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to this Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder SEC Documents contain true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock Convertible Securities (as defined below) and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereof.

Equity Capitalization. As of the Execution Date, the authorized capital stock of the Company consists of 975,000,000 shares of Common Stock. The capitalization of the Company immediately prior to each Closing is set forth on Schedule 3(r)(A) attached hereto and the capitalization of the Company immediately following each Closing is set forth on Schedule 3(r)(B) attached hereto. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r)(C): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating tocalls, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notesoutstanding, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has not issued any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementrights; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the Financial Statements in the Company’s filings accordance with the SEC (the “SEC Documents”) which are GAAP but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse EffectFinancial Statements. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of 100,000,000 shares of Common Stock, of which 11,889,262 shares are issued and outstanding, and 8,011,430 shares are reserved for issuance pursuant to securities (other than the Warrants) exercisable or exchangeable for, or convertible into, Common Stock. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed on Schedule 5(h): in in the SEC Documents: (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) except as disclosed in the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its the Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its the Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its the Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its the Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its the Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to Section 4(l) hereof); (viiv) there are no outstanding securities or instruments of the Company or any of its the Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its the Subsidiaries is or may become bound to redeem a security of the Company or any of its the Subsidiaries; and (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Closing Date, the authorized Capital Stock and the issued and outstanding Equity Interests of each Credit Party and each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of such outstanding shares of Capital Stock or other Equity Interests of each Credit Party and each Subsidiary of each Credit Party have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Persons and in the amounts set forth on Schedule 7.7. Except as disclosed set forth on Schedule 5(h): 7.7: (i) none of the Company’s Capital Stock or other Equity Interest in any Credit Party or any Subsidiary’s capital stock Subsidiary of any Credit Party is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company such Credit Party or any such Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interest in any Credit Party or any Subsidiary of its Subsidiariesany Credit Party, or contracts, commitments, understandings or arrangements by which the Company any Credit Party or any Subsidiary of its Subsidiaries any Credit Party is or may become bound to issue additional capital stock of the Company Capital Stock or other Equity Interest in any Credit Party or any Subsidiary of its Subsidiaries any Credit Party or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company Capital Stock or other Equity Interest in any Credit Party or any Subsidiary of its Subsidiariesany Credit Party; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company any Credit Party or any Subsidiary of its Subsidiaries any Credit Party or by which the Company any Credit Party or any Subsidiary of its Subsidiaries any Credit Party is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company any Credit Party or any Subsidiary of its Subsidiariesany Credit Party; (v) there are no agreements or arrangements under which the Company any Credit Party or any Subsidiary of its Subsidiaries any Credit Party is obligated to register the sale of any of their its securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company any Credit Party or any Subsidiary of its Subsidiaries any Credit Party which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company any Credit Party or any Subsidiary of its Subsidiaries any Credit Party is or may become bound to redeem a security of the Company any Credit Party or any Subsidiary of its Subsidiariesany Credit Party; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesNotes; (viii) neither none of the Company nor any Subsidiary Credit Party or their Subsidiaries has any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; agreement and (ix) neither none of the Company nor any of its Credit Parties or their Subsidiaries have has any liabilities or obligations required to be disclosed in its financial statements (including the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectfootnotes thereto). The Company has furnished Prior to the Holder Closing, the Credit Parties have provided to the Agent true, correct and complete copies of the Company’s Certificate (i) each Credit Parties' and Subsidiary's certificate or articles of Incorporationincorporation (or other applicable governing document), as amended and as in effect on the date hereof (the “Certificate of Incorporation”)Closing Date, and the Company’s (ii) each Credit Party's and each of its Subsidiary's bylaws, as amended and as in effect on the date hereof Closing Date (the “Bylaws”or other applicable governing document), and the terms of . Schedule 7.7 identifies all outstanding securities convertible into, or exercisable or exchangeable for, shares of Common Capital Stock or other Equity Interests in any Credit Party or any Subsidiary of any Credit Party and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. The Company's equity capitalization, on a fully diluted basis, as of September 30, 2016 is set forth on Schedule 3(p). All outstanding shares set forth therein have been validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h): 3(p) or as described in or contemplated by the SEC Documents: (i) none of the Company’s or any Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its SubsidiariesCompany; (iii) except for Indebtedness of the Company incurred in the ordinary course of business of the Company, which in the aggregate would not reasonably be expected to have a Material Adverse Effect, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness material Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) except for financing statements related to Indebtedness of the Company described in the SEC Documents, there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its SubsidiariesCompany; (viivi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ixviii) neither the Company nor any of its Subsidiaries have any has no material liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses 's business and which, individually or in the aggregate, do would not or could not reasonably be expected to have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of one hundred million (100,000,000) shares of common stock, $0.001 par value per share, of which, as of the date hereof, 13,178,656 shares are issued and outstanding, and ten million (10,000,000) shares of preferred stock, $0.001 par value per share, of which no shares were issued and outstanding on the date hereof. All of such outstanding shares of Parent and the Company have been validly issued and are fully paid and nonassessable. Except as disclosed on Schedule 5(h3(r): (i) none of Parent’s or the Company’s or any Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by Parent or the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company Parent or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company Parent or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company Parent or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of the Company Parent or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company Parent or any of its Subsidiaries or by which the Company Parent or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company Parent or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company Parent or any of its Subsidiaries is obligated to register the sale of any of their its securities under the Securities Act1933 Act (except the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company Parent or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company Parent or any of its Subsidiaries is or may become bound to redeem a security of the Company Parent or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company Parent nor any Subsidiary of its Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of Parent and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the CompanyParent’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effectbusinesses. The Company has furnished to the Holder Schedule 3(r) contains true, correct and complete copies of (i) the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (“the “Certificate Company’s Articles of Incorporation”), and (ii) the Company’s bylawsBylaws, as amended and as in effect on the date hereof (“the Company’s Bylaws”), (iii) Parent’s Articles of Incorporation, as amended and as in effect on the date hereof (“Parent’s Articles of Incorporation”), (iv) Parent’s Bylaws, as amended and as in effect on the date hereof (“Parent’s Bylaws”), and (v) the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.thereto. NYK 1088891-10.079338.0012

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of 150,000,000 shares of Common Stock, of which as of the date hereof, 5,354,091 are issued and outstanding and no shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Common Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r): (i) none of the Company’s or any Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s 's Certificate of Incorporation, as amended and as in effect on the date hereof (the “"Certificate of Incorporation”"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of 110,000,000 shares, of which as of the date hereof, (i) 100,000,000 shares are designated Common Stock, of which 37,080,000 shares are issued and outstanding (20,000,000 of which are treasury shares) and (ii) 10,000,000 shares are designated Preferred Stock, of which none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on Schedule 5(h): (i) in the SEC Documents, none of the Company’s or any Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to the Registration Rights Agreement and the registration rights agreement dated as of March 22, 2006); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished to the Holder Xxxx true, correct and complete copies of the Company’s 's Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company is set forth in the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2022. Except as disclosed on Schedule 5(h): in the SEC Documents, (i) none no shares of the Company’s or any Subsidiary’s 's capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; Company, (ii) there are no outstanding debt securities, (iii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; Act (viexcept the Registration Rights Agreement), (v) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; , (viivi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; Securities as described in this Agreement or, with respect to the Warrant Shares, the Warrants, and (viiivii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither . All of the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course outstanding shares of the Company’s capital stock are duly authorized and have been, or its Subsidiaries’ respective businesses upon issuance will be, validly issued and which, individually or in the aggregate, do not or could not have a Material Adverse Effectare fully paid and nonassessable. The Company has furnished to the Holder true, Buyer true and correct and complete copies of the Company’s Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylawsThird Amended and Restated Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and summaries of the material terms of all securities convertible into, into or exercisable or exchangeable forfor Common Stock, shares if any, and copies of Common Stock and any documents containing the material rights of the holders thereof in respect thereto that have are not been disclosed in the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(h): As of the date hereof, the authorized capital stock of the Company consists of (i) none 90,000000 shares of Common Stock, of which, 23,592,755 are issued and outstanding and 6,894,540 shares are reserved for issuance pursuant to securities (other than the Subscription Units) exercisable or exchangeable for, or convertible into, shares of Common (i) None of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) except as set forth on Schedule 3(r)(v) attached hereto, there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to this Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) except as set forth on Schedule 3(r)(vii) attached hereto, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. Except as disclosed on Schedule 5(hin the SEC Documents (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesExchange Shares; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder trueTrue, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock common stock and the material rights of the holders thereof in respect thereto that are incorporated in, or have not been disclosed in in, the SEC Documents.

Equity Capitalization. Except as disclosed on Schedule 5(hin the SEC Documents (as defined below): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesSeries A Preferred Stock; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC Commission (the “SEC Documents”) which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the each Holder true, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended Amended and Restated Bylaws and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of Common Stock, of which as of the date hereof, 1,000,000 shares of Common Stock are issued and outstanding, no shares of Common Stock are reserved for issuance pursuant to the Company’s stock option and purchase plans, of which no shares of Common Stock are subject to outstanding Company options granted under the Company stock plans and no shares of Common Stock are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, Common Stock and (ii) no there are no authorized shares of preferred stock. No Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. (i) Except as disclosed on in Schedule 5(h): (i3(ww)(i) hereto, none of the Company’s or any Subsidiary’s capital stock equity is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary’s; (ii) except as disclosed in Schedule 3(ww)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock equity of the Company or any of its the Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its the Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock equity of the Company or any of its the Subsidiaries; (iii) except as disclosed in Schedule 3(ww)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its the Subsidiaries or by which the Company or any of its the Subsidiaries is or may become bound; (iv) except as disclosed in Schedule 3(ww)(iv), there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its the Subsidiaries; (v) ), except as disclosed in Schedule 3(ww)(v), there are no agreements or arrangements under which the Company or any of its the Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) except as disclosed in Schedule 3(ww)(vi), there are no outstanding securities or instruments of the Company or any of its the Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its the Subsidiaries is or may become bound to redeem a security of the Company or any of its the Subsidiaries; (vii) except as disclosed in Schedule 3(ww)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule 3(ww)(viii), neither the Company nor any Subsidiary of its Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither except as disclosed in Schedule 3(ww)(ix), the Company nor or any of its the Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are not so disclosed in the SEC Documentsobligations, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ any of the Subsidiary’s respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to the Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.

Equity Capitalization. As of the Execution Date, the authorized capital stock of the Company consists of 975,000,000 shares of Common Stock. The capitalization of the Company immediately prior to the Closing Date is set forth on Schedule 3(r)(A) attached hereto and the capitalization of the Company immediately following the Closing Date is set forth on Schedule 3(r)(B) attached hereto. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed on in Schedule 5(h3(r)(C): (i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating tocalls, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notesoutstanding, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act1933 Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has not issued any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementrights; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the Financial Statements in the Company’s filings accordance with the SEC (the “SEC Documents”) which are GAAP but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse EffectFinancial Statements. The Company has furnished to the Holder Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s bylawsBylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documentsthereto.

Equity Capitalization. The Company has or will have, as the case may be, an authorized, issued and outstanding capitalization as is set forth in the Registration Statement and the Prospectus (subject, in each case, to the issuance of shares of Common Stock upon exercise of stock options and warrants disclosed as outstanding in the Registration Statement and the Prospectus and the grant or issuance of options or shares under existing equity compensation plans or stock purchase plans described in the Registration Statement or the Prospectus), and such authorized capital stock conforms to the description thereof set forth in the Registration Statement and the Prospectus. Except as disclosed on Schedule 5(h): in the Registration Statement and the Prospectus (i) none of the Company’s or any Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any SubsidiaryCompany; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness Indebtedness (as defined in the Certificate of Designations) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) other than the financing statements perfecting the lien on the Company's Subsidiaries processing portfolios income stream in connection with the credit facility from RBL Capital Group, LLC, there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of and its Subsidiaries have any no liabilities or obligations required to be disclosed in the in the Company’s filings with the SEC (the “SEC Documents”) which are Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s 's or any of its Subsidiaries’ Subsidiary's' respective businesses and which, individually or in the aggregate, do not or could would not have a Material Adverse Effect. The Company has furnished or made available to the Holder Buyers true, correct and complete copies of the Company’s 's Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “"Certificate of Incorporation”"), and the Company’s bylaws's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all securities convertible into, or exercisable or exchangeable for, for shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed thereto. All of the Securities conform to the description thereof contained in the SEC DocumentsRegistration Statement and the Prospectus. The form of certificates for the Securities will conform to the corporate law of the jurisdiction of the Company's incorporation.