Common use of Representations, Warranties and Covenants of the Stockholders Clause in Contracts

Representations, Warranties and Covenants of the Stockholders. Each Stockholder, severally but not jointly, represents and warrants to Parent as follows: (i) such Stockholder has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (ii) this Agreement has been duly executed and delivered by such Stockholder and the execution, delivery and performance of this Agreement by such Stockholder and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of such Stockholder; (iii) assuming the due authorization, execution and delivery of this Agreement by Parent, this Agreement constitutes the valid and binding agreement of such Stockholder enforceable against such Stockholder in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors, rights generally and by general equitable principles; (iv) the execution and delivery of this Agreement by such Stockholder does not conflict with or violate any law or agreement binding upon it, nor require any consent, notification, regulatory filing or approval and (v) except for restrictions in favor of Parent pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act of 1933, as amended, and the “blue sky” laws of the various States of the United States, each Stockholder owns, beneficially, all of its Shares, as applicable, free and clear of any proxy, voting restriction, adverse claim or other lien and has voting power and power of disposition with respect to all of its Shares, with no restrictions on such Stockholder’s rights of voting or disposition pertaining thereto and no Person other than such Stockholder has any right to direct or approve the voting or disposition of any of its Shares, except in the case of clause (iv) and (v) for violations, breaches or defaults that would not in the aggregate materially impair the ability of such Stockholder to perform its obligations hereunder. Notwithstanding anything contained to the contrary in this Agreement, in the event a Stockholder (or any Representative of a Stockholder) is a director or officer of the Company, nothing in this Agreement is intended or shall be construed to require such Stockholder (or Representative), solely in his or her capacity as a director or officer of the Company, to act or fail to act in any manner inconsistent with (i) his or her fiduciary duties in such capacity and (ii) the Merger Agreement. Furthermore, no Stockholder (or any Representative of a Stockholder) who is or becomes (during the term hereof) a director or officer of the Company makes any agreement or understanding herein solely in his or her capacity as a director or officer, and nothing herein will limit or affect, or give rise to any liability of any Stockholder (or Representative) solely in such Person’s capacity as a director or officer of the Company.

Representations, Warranties and Covenants of the Stockholders. Each Promptly after the Effective Time, Parent shall cause to be mailed to each holder of record of Company Common Stock that were converted pursuant to Section 1.5 hereof into the right to receive Parent Common Stock a letter of transmittal (“Letter of Transmittal”) in substantially the form attached hereto as Exhibit E which shall contain additional representations, warranties and covenants of such Stockholder, severally but not jointlyincluding without limitation, represents and warrants to Parent as follows: that (i) such Stockholder has all necessary full right, power and authority to execute deliver such Company Common Stock and deliver this Agreement and to perform its obligations hereunder; Letter of Transmittal, (ii) this Agreement has been duly executed and delivered by the delivery of such Company Common Stock will not violate or be in conflict with, result in a breach of or constitute a default under, any indenture, loan or credit agreement, deed of trust, mortgage, security agreement or other agreement or instrument to which such Stockholder and the executionis bound or affected, delivery and performance of this Agreement by such Stockholder and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of such Stockholder; (iii) assuming the due authorizationsuch Stockholder has good, execution and delivery of this Agreement by Parent, this Agreement constitutes the valid and binding marketable title to all shares of Company Common Stock indicated in such Letter of Transmittal and that such Stockholder is not affected by any voting trust, agreement or arrangement affecting the voting rights of such Stockholder enforceable against such Stockholder in accordance with its termsCompany Common Stock, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors, rights generally and by general equitable principles; (iv) the execution and delivery of this Agreement by such Stockholder does is an “accredited investor,” as such term is defined in Regulation D under the Securities Act and that such Stockholder is acquiring Parent Common Stock for investment purposes, and not conflict with a view to selling or violate otherwise distributing such Parent Common Stock in violation of the Securities Act or the securities laws of any law or agreement binding upon itstate, nor require any consent, notification, regulatory filing or approval and (v) except for restrictions in favor of Parent pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act of 1933, as amended, and the “blue sky” laws of the various States of the United States, each Stockholder owns, beneficially, all of its Shares, as applicable, free and clear of any proxy, voting restriction, adverse claim or other lien and has voting power and power of disposition with respect to all of its Shares, with no restrictions on such Stockholder’s rights of voting or disposition pertaining thereto and no Person other than such Stockholder has had an opportunity to ask and receive answers to any right questions such Stockholder may have had concerning the terms and conditions of the Merger and the Parent Common Stock and has obtained any additional information that such Stockholder has requested. Delivery shall be effected, and risk of loss and title to direct the Parent Common Stock shall pass, only upon delivery to the Parent (or approve an agent of the voting Parent) of (x) certificates evidencing ownership thereof as contemplated by Section 1.6 hereof (or disposition affidavit of any of its Shareslost certificate), except in the case of clause (iv) and (v) for violations, breaches or defaults that would not in the aggregate materially impair the ability of such Stockholder to perform its obligations hereunder. Notwithstanding anything contained to the contrary in this Agreement, in the event a Stockholder (or any Representative of a Stockholder) is a director or officer of the Company, nothing in this Agreement is intended or shall be construed to require such Stockholder (or Representative), solely in his or her capacity as a director or officer of the Company, to act or fail to act in any manner inconsistent with (i) his or her fiduciary duties in such capacity and (iiy) the Merger Agreement. FurthermoreLetter of Transmittal containing the representations, no Stockholder (or any Representative of a Stockholder) who is or becomes (during the term hereof) a director or officer of the Company makes any agreement or understanding herein solely in his or her capacity as a director or officer, warranties and nothing herein will limit or affect, or give rise to any liability of any Stockholder (or Representative) solely in such Person’s capacity as a director or officer of the Companycovenants contemplated by this Section 4.

Representations, Warranties and Covenants of the Stockholders. Each Promptly after the Effective Time, Parent shall cause to be mailed to each holder of record of Company Common Stock that was converted pursuant to Section 1.5 hereof into the right to receive Parent Common Stock a letter of transmittal (“Letter of Transmittal”) in substantially the form attached hereto as Exhibit E which shall contain additional representations, warranties and covenants of such Stockholder, severally but not jointlyincluding without limitation, represents and warrants to Parent as follows: that (i) such Stockholder has all necessary full right, power and authority to execute deliver such Company Common Stock and deliver this Agreement and to perform its obligations hereunder; Letter of Transmittal, (ii) this Agreement has been duly executed and delivered by the delivery of such Company Common Stock will not violate or be in conflict with, result in a breach of or constitute a default under, any indenture, loan or credit agreement, deed of trust, mortgage, security agreement or other agreement or instrument to which such Stockholder and the executionis bound or affected, delivery and performance of this Agreement by such Stockholder and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of such Stockholder; (iii) assuming the due authorizationsuch Stockholder has good, execution and delivery of this Agreement by Parent, this Agreement constitutes the valid and binding marketable title to all shares of Company Common Stock indicated in such Letter of Transmittal and that such Stockholder is not affected by any voting trust, agreement or arrangement affecting the voting rights of such Stockholder enforceable against such Stockholder in accordance with its termsCompany Common Stock, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors, rights generally and by general equitable principles; (iv) the execution and delivery of this Agreement by such Stockholder does is an “accredited investor” or a “sophisticated purchaser” as such term is defined in Regulation D under the Securities Act and that such Stockholder is acquiring Parent Common Stock for investment purposes, and not conflict with a view to selling or violate otherwise distributing such Parent Common Stock in violation of the Securities Act or the securities laws of any law or agreement binding upon itstate, nor require any consent, notification, regulatory filing or approval and (v) except for restrictions in favor of Parent pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act of 1933, as amended, and the “blue sky” laws of the various States of the United States, each Stockholder owns, beneficially, all of its Shares, as applicable, free and clear of any proxy, voting restriction, adverse claim or other lien and has voting power and power of disposition with respect to all of its Shares, with no restrictions on such Stockholder’s rights of voting or disposition pertaining thereto and no Person other than such Stockholder has had an opportunity to ask and receive answers to any right questions such Stockholder may have had concerning the terms and conditions of the Merger and the Parent Common Stock and has obtained any additional information that such Stockholder has requested. Delivery shall be effected, and risk of loss and title to direct the Parent Common Stock shall pass, only upon delivery to the Parent (or approve an agent of the voting Parent) of (x) certificates evidencing ownership thereof as contemplated by Section 1.6 hereof (or disposition affidavit of any of its Shareslost certificate), except in the case of clause (iv) and (v) for violations, breaches or defaults that would not in the aggregate materially impair the ability of such Stockholder to perform its obligations hereunder. Notwithstanding anything contained to the contrary in this Agreement, in the event a Stockholder (or any Representative of a Stockholder) is a director or officer of the Company, nothing in this Agreement is intended or shall be construed to require such Stockholder (or Representative), solely in his or her capacity as a director or officer of the Company, to act or fail to act in any manner inconsistent with (i) his or her fiduciary duties in such capacity and (iiy) the Merger Agreement. FurthermoreLetter of Transmittal containing the representations, no Stockholder (or any Representative of a Stockholder) who is or becomes (during the term hereof) a director or officer of the Company makes any agreement or understanding herein solely in his or her capacity as a director or officer, warranties and nothing herein will limit or affect, or give rise to any liability of any Stockholder (or Representative) solely in such Person’s capacity as a director or officer of the Companycovenants contemplated by this Section 4.

Representations, Warranties and Covenants of the Stockholders. Each Stockholder, severally but individually and not jointly, represents hereby makes the following representations and warrants warranties to Parent the Company, and covenants for the benefit of the Company, as follows: (i) such Stockholder has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (ii) this 2.1 This Agreement has been duly authorized, validly executed and delivered by or on behalf of such Stockholder and the execution, delivery and performance of this Agreement by such Stockholder and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of such Stockholder; (iii) assuming the due authorization, execution and delivery of this Agreement by Parent, this Agreement constitutes the is a valid and binding agreement and obligation of such Stockholder enforceable against such Stockholder in accordance with its terms, except as may be limited subject to limitations on enforcement by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium and other moratorium, liquidation or similar laws of general application which may affect relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies, rights generally and by general equitable principles; (iv) the execution and delivery of this Agreement by such Stockholder does not conflict with or violate any law or agreement binding upon it, nor require any consent, notification, regulatory filing or approval has full power and (v) except for restrictions in favor of Parent pursuant authority to this execute and deliver the Agreement and except the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder. 2.2 Such Stockholder understands that the shares of Series A Preferred are being offered and sold in reliance on specific provisions of Federal and state securities laws, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of such Stockholder set forth herein for such transfer restrictions purposes of general applicability as may be provided qualifying for exemptions from registration under the Securities Act of 1933, as amendedamended (the “Securities Act”), and applicable state securities laws. 2.3 Such Stockholder is an “accredited investor” as defined under Rule 501 of Regulation D, promulgated under the “blue sky” laws Securities Act. 2.4 Such Stockholder will be acquiring the Series A Preferred for their own account, for investment purposes, and not with a current view to any resale or distribution in whole or in part, in violation of the various States Securities Act or any applicable securities laws; provided, however, that notwithstanding the foregoing, such Stockholder does not covenant to hold the Series A Preferred for any minimum period of time. 2.5 Such Stockholder understands that the shares Series A Preferred have not been registered under the Securities Act, are being issued pursuant to an exemption under Section 3(a)(9) of the United StatesSecurities Act and may not be resold except in accordance with Rule 144 promulgated under the Securities Act or pursuant to another available exemption from the registration requirements of the Securities Act or pursuant to a registration statement. 2.6 Such Stockholder owns and holds, beneficially and of record, the entire right, title, and interest in and to the Exchange Shares free and clear of all rights and Encumbrances (as defined below), and each Stockholder owns, beneficially, all has full power and authority to transfer and dispose of its Shares, as applicable, the Exchange Shares free and clear of any proxy, voting restriction, adverse claim right or other lien and has voting power and power of disposition with respect to all of its Shares, with no restrictions on such Stockholder’s rights of voting or disposition pertaining thereto and no Person other Encumbrance. Other than such Stockholder has any right to direct or approve the voting or disposition of any of its Shares, except in the case of clause (iv) and (v) for violations, breaches or defaults that would not in the aggregate materially impair the ability of such Stockholder to perform its obligations hereunder. Notwithstanding anything contained to the contrary in transactions contemplated by this Agreement, there is no outstanding plan, pending proposal, or other right of any person to acquire all or any of the Exchange Shares. “Encumbrances” shall mean any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional sale, or other title claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected, voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any of the foregoing in the event a Stockholder (or any Representative of a future. 2.7 Such Stockholder) is a director or officer of the Company, nothing in this Agreement is intended or shall be construed to require such Stockholder (or Representative), solely in his or her its capacity as a director or officer holder of Series E Convertible Preferred Stock, Series F Convertible Preferred Stock, and/or Series G Convertible Preferred Stock, as the case may be, hereby approves, subject to and effective upon the consummation of both the Exchange and the Qualified Financing (as defined below), the designation of a series of the Company, to act or fail to act Series A Preferred with the preferences and rights set forth in any manner inconsistent with (i) his or her fiduciary duties in such capacity and (ii) the Merger AgreementCertificate of Designations. Furthermore, no Stockholder (or any Representative of a Stockholder) who is or becomes (during the term hereof) a director or officer of the Company makes any agreement or understanding herein solely in his or her capacity as a director or officer, and nothing herein will limit or affect, or give rise to any liability of any Stockholder (or Representative) solely in such Person’s capacity as a director or officer of the Company3.

Representations, Warranties and Covenants of the Stockholders. Each Stockholder, severally but not jointly, represents and warrants to Parent as follows: (i) such Stockholder has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (ii) this Agreement has been duly executed and delivered by such Stockholder and the execution, delivery and performance of this Agreement by such Stockholder and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of such Stockholder; (iii) assuming the due authorization, execution and delivery of this Agreement by Parent, this Agreement constitutes the valid and binding agreement of such Stockholder enforceable against such Stockholder in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors, rights generally and by general equitable principles; (iv) the execution and delivery of this Agreement by such Stockholder does not conflict with or violate any law or agreement binding upon it, nor require any consent, notification, regulatory filing or approval and (v) except for restrictions in favor of Parent pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act of 1933, as amended, and the “blue sky” laws of the various States of the United States, each Stockholder owns, beneficially, all of its Shares, as applicable, free and clear of any proxy, voting restriction, adverse claim or other lien and has voting power and power of disposition with respect to all of its Shares, with no restrictions on such Stockholder’s rights of voting or disposition pertaining thereto and no Person other than such Stockholder has any right to direct or approve the voting or disposition of any of its Shares, except in the case of clause (iv) and (v) for violations, breaches or defaults that would not in the aggregate materially impair the ability of such Stockholder to perform its obligations hereunder. Notwithstanding anything contained to the contrary in this Agreement, in the event a Stockholder (or any Representative of a Stockholder) is a director or officer of the Company, nothing in this Agreement is intended or shall be construed to require such Stockholder (or Representative), solely in his or her capacity as a director or officer of the Company, to act or fail to act in any manner inconsistent with (i) his or her fiduciary duties in such capacity and (ii) the Merger Agreement. Furthermore, no Stockholder (or any Representative of a Stockholder) who is or becomes (during the term hereof) a director or officer of the Company makes any agreement or understanding herein solely in his or her capacity as a director or officer, and nothing herein will limit or affect, or give rise to any liability of any Stockholder (or Representative) solely in such Person’s 's capacity as a director or officer of the Company.