Common use of The Rights Offering Clause in Contracts

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) prepare and file with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”), covering the issuance of the Rights and the Common Stock issuable upon exercise of the Rights in the Rights Offering. The Company shall not permit any securities to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise of the Rights in the Rights Offering. The Registration Statement (including all pre-effective and post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to the Investors and their counsel prior to its filing with the SEC, and the Investors and their counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with the SEC. The Company shall duly consider in good faith any comments of the Investors and their counsel to the Registration Statement and the Proxy Statement. (b) The Investors shall provide to the Company such information as the Company may reasonably request in connection with the preparation and filing of the Registration Statement. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effective, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement shall comply in all material respects with the requirements as to form of Form S-11, and the Registration Statement shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 are referred to as the “10b-5 Representation.” (f) Promptly following the date on which the Registration Statement is declared effective by the SEC, the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering on the following terms: (i) the Company shall distribute, at no charge, one Right to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Record Date, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, thereby entitling such holders of Rights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 shares of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”), provided that no fractional shares of Common Stock shall be issued and the Rights Subscription Price multiplied by the aggregate number of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statement, (iii) each such Right shall be transferable, (iv) the rights offering shall remain open for at least sixteen (16) days, or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for in the Rights Offering (the “Oversubscription Privilege”); provided, if the remaining number of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilege, all over-subscription requests shall be honored on a pro rata basis in the manner to be set forth in the Prospectus, (vi) no Person may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”). (g) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) or waive any material conditions to the closing of the Rights Offering without the prior written consent of the Investors, which consent may be withheld by the Investors in their sole discretion. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur in the manner and on the terms of the Rights Offering in Section 2.1(f), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (h) The Company shall pay all of its expenses associated with the Registration Statement, the Prospectus, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Laws.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the Company shall (i) use commercially reasonable efforts to prepare and file with the SEC Securities and Exchange Commission (the Proxy Statement and (ii“SEC”) prepare and file with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”)) under the Securities Act of 1933 (the “Securities Act”) on Form S-3, covering the issuance offer and sale of the Rights and the Common Stock issuable upon exercise of the Rights in the Rights Offering. The Company shall not permit any securities to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise of the Rights to be issued in the Rights Offering. The Registration Statement (including all pre-effective and post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to the Investors and their counsel prior to its filing with the SEC, and the Investors and their counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with upon the SECRegistration Statement (and any post-effective amendments). The Company shall duly consider in good faith any use commercially reasonable efforts to, as promptly as practicable, (i) respond to comments of the Investors and their counsel to the Registration Statement raised by the staff of the SEC and (ii) cause the Proxy StatementRegistration Statement and any post-effective amendment to be declared effective by the SEC. (b) The Investors shall provide to the Company such information and other assistance as the Company it may reasonably request require in connection with the preparation and filing of the Registration StatementStatement and the final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”). At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effectiveeffective and as of the date of the Prospectus, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement shall comply in all material respects with the requirements as to form of Form S-11S-3, and the Registration Statement and any documents incorporated by reference therein shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b)for inclusion therein. Each Preliminary The Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b)for inclusion therein. The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 are referred to as the “10b-5 Representation.”previous two sentences are (fd) Promptly following the date on which the Registration Statement is declared effective by the SECSEC (the “Registration Effective Date”), the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to the Company’s stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering a rights offering on the following terms: (i) the Company shall distribute, at no charge, one Right to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Record Date, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a such number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, Price thereby entitling such holders of Rights, in the aggregate, to subscribe for an aggregate number of approximately 15,797,788 shares of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”), ) of Common Stock equal to $45 million divided by the Subscription Price; provided that no fractional shares of Common Stock shall be issued and pursuant to the Rights Subscription Price multiplied by the aggregate number exercise of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statementany Rights, (iii) each such Right shall be non-transferable, (iv) the rights offering shall remain open for at least sixteen (16) days, but no more than twenty days or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder Eligible Holder who fully exercises all Rights held by such holder Eligible Holder shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for in the Rights Offering (the “Oversubscription Over-Subscription Privilege”); providedprovided that, if the insufficient remaining number shares of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilegeavailable, all over-subscription requests shall be honored on a pro rata basis in among Rights holders who exercise the manner to be set forth in Over-Subscription Privilege (based on the ProspectusBasic Subscription Rights exercised), (vi) no Person (other than the Investors and their Affiliates, who may acquire New Shares as contemplated by this Agreement) will be entitled to exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership Ownership, or ownership for purposes of section 382 of the Internal Revenue Code of 1986, as amended, in excess of 9.84.99% of the outstanding Capital Common Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person (other than the Investors and their Affiliates) who is, prior to on the consummation date of the Rights Offeringthis Agreement, the Beneficial Owner of in excess of 9.84.99% of the outstanding Capital Common Stock shall be entitled to exercise the Rights (including any overOver-subscription rightSubscription Right) only to the extent necessary to maintain the same her, his or its proportionate Beneficial Ownership percentage that such Person had interest in the Capital Common Stock of on the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”)date hereof. (ge) The Prior to the termination of this Agreement, the Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) ‎1.1‎(d), terminate the Rights Offering or waive any material conditions to the closing of the Rights Offering Offering, without the prior written consent of Xxxxxx Investing LLC on behalf of all of the Investors, which consent may be withheld by the Investors in their sole discretion. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur at the time, for the Subscription Price and in the manner and on the terms of the Rights Offering in Section 2.1(f‎1.1‎(d), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (hf) The Company shall pay all of its expenses associated with the Registration Statement, the Prospectus, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Laws.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreementhereof, the Company shall (i) will prepare and file with the SEC the Proxy Statement and (ii) prepare and file with the SEC Commission a registration statement on Form S-11 S-3 as adopted pursuant to the Securities Act (including each amendment and supplement theretoor, if Form S-3 is not then available to the Company, on Form S-1 as adopted pursuant to the Securities Act) (together with the Prospectus, the “"Registration Statement”), ") covering the issuance of the Common Stock Purchase Rights and the Common Stock issuable upon exercise of the Rights in the Rights OfferingShares. The Company shall will not permit any securities other than the Common Stock Purchase Rights and Rights Shares to be included in or covered by such Registration Statement. Neither the Registration Statement nor any amendment or supplement thereto, nor request for acceleration of effectiveness thereof, will be filed or submitted to any Governmental Entity without the Investors' prior consent (except if, upon the advice of legal counsel, such filing or submission is required by Law, in which event it may be filed only at the time required by Law (and no earlier)). The Investors and their counsel will be given the opportunity to participate in all drafting sessions, negotiations and other than the Rights discussions with respect to such Registration Statement, and the Common Stock issuable upon exercise of the Rights in the Rights Offering. The Registration Statement (including all pre-effective and post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to Company will provide the Investors and their counsel prior with any written comments or other written communications that the Company or its counsel receives from time to time from the Commission or its filing staff with the SEC, and the Investors and their counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with the SEC. The Company shall duly consider in good faith any comments of the Investors and their counsel respect to the Registration Statement and promptly after such communications are received by the Proxy Statement. (b) Company. The Investors shall provide to the Company such information as the Company may reasonably request in connection with the preparation and filing of the Registration Statement. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effective, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement shall comply in all material respects with the requirements as provisions of applicable federal securities Laws. The Company promptly will correct any information provided by it for use in the Registration Statement if and to form of Form S-11the extent that such information becomes false or misleading in any material respect or omits to state any material fact, and the Company will take all steps necessary to cause the Registration Statement, as so corrected, to be filed with the Commission and to be disseminated to the distributees of the Common Stock Purchase Rights, in each case as and to the extent required by applicable federal securities Laws. The Company will use its best efforts to cause the Registration Statement shall not include an untrue statement of a material fact or omit to state a material fact necessary be filed pursuant to make this Section 5.2(a) to be declared effective by the statements therein, in light Commission as soon as possible after the Registration Statement is filed with the Commission. (b) Promptly following the effective date of the circumstances in which they were madeRegistration Statement, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The final prospectus relating to will commence the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and is commenced is referred to herein as of the date of the expiration of "Commencement Date"). In the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect will distribute to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(eeach holder of Common Stock (and each holder of options or warrants issuable for Common Stock identified on Schedule 5.2(b) and in Section 4.7 are referred to as the “10b-5 Representation.” (fhereto) Promptly following the date on which the Registration Statement is declared effective by the SEC, the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering on the following terms: (i) the Company shall distributeDate, at no chargecost to such holder, one Right to each holder of record of Common Stock Purchase Right for each share of Common Stock held by such holder as of the Record Date (treating each share of Participating Preferred Stock, for purposes of determining the holders of Common Stock and the number of shares of Common Stock held on the Record Date, (ii) each as if it was converted into the number of shares of Common Stock for which it is convertible pursuant to Section 4 of the Statement of Designation, provided that notwithstanding the foregoing, nothing herein requires the holders of the Participating Preferred Stock to convert such Participating Preferred Stock into Common Stock in order to obtain the rights set forth in this Agreement). Each Common Stock Purchase Right shall will entitle the holder thereof thereof, in such holder's sole discretion (the "Basic Subscription Privilege"), to purchase, at the election of such holderSubscription Price, a number of shares of Common Stock equal to (Ai) 15,797,788 $50,000,000 divided by the Subscription Price divided by (Bii) the aggregate number of Common Stock Purchase Rights issued in the Rights Offering. The Company shall not, without the express prior written consent of the Investors, sell shares of Common Stock in the Rights Offering at less than the Subscription Price. If any Person who holds a Common Stock Purchase Right exercises more than one Common Stock Purchase Right in connection with the Rights Offering, such Person shall receive the number of shares of Common Stock outstanding resulting from aggregating all such exercises, rounded down to the nearest whole share. The Rights Offering will remain open until the Closing Date, and the Common Stock Purchase Rights will expire at 5:00 p.m., New York, New York local time on the Record Closing Date, at the Rights Subscription Price, thereby entitling such holders of Rights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 shares except as otherwise required by applicable Law. (c) Each holder of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”), provided that no fractional shares of Common Stock shall be issued and the Purchase Rights who exercises its Basic Subscription Price multiplied by the aggregate number of shares of Common Stock offered shall not exceed the aggregate offering amount described Privilege in the Registration Statement, (iii) each such Right shall be transferable, (iv) the rights offering shall remain open for at least sixteen (16) days, or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall full will be entitled to subscribe for additional shares those Rights Shares it did not subscribe for through its Basic Subscription Privilege at the Subscription Price (the "Oversubscription Privilege"). If the number of Rights Shares remaining after the exercise of all Basic Subscription Privileges is not sufficient to satisfy the exercise of all Oversubscription Privileges, the holders exercising such Oversubscription Privileges will be allocated such Rights Shares pro rata and in proportion to the number of Rights Shares such holders purchased through their respective Basic Subscription Privileges. If the pro rata allocation referred to in the immediately preceding sentence exceeds the number of Rights Shares requested to be purchased by such holder through the exercise of its Oversubscription Privilege, then such holder only will receive the number of Rights Shares so requested, and the remaining Rights Shares from such holder's pro rata allocation will be divided among other holders of Common Stock that were not subscribed for Purchase Rights exercising their Oversubscription Privileges. If the pro rata allocation referred to in the Rights Offering (second sentence of this Section 5.2(c) is less than the “Oversubscription Privilege”); provided, if the remaining number of unsubscribed shares Rights Shares requested to be purchased by such holder through the exercise of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the its Oversubscription Privilege, all over-subscription requests shall be honored on a pro rata basis in then the manner to be set forth in excess funds paid by such holder as the Prospectus, (vi) no Person may exercise Subscription Price for the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall Shares not issued will be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”). (g) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) returned without interest or waive any material conditions to the closing of the Rights Offering without the prior written consent of the Investors, which consent may be withheld by the Investors in their sole discretion. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Perioddeduction. The closing of the Rights Offering shall exercise of the Oversubscription Privileges will also occur in the manner and on the terms of the Rights Offering in Section 2.1(f), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business DaysClosing Date. (hd) The Company shall will pay all of its expenses associated with the Registration Statement, the Prospectus, Statement referred to in Section 5.2(a) and the Rights Offering and registration of the other transactions contemplated herebyRights Shares and the Common Stock Purchase Rights, including including, without limitation, filing and printing fees, fees and expenses of any the subscription and information agentsagent, fees and expenses of its counsel and accounting fees and expenses and expenses, costs associated with clearing the Rights Shares and the Common Stock offered thereby Purchase Rights for sale under applicable state securities Laws, listing fees and the Investors reasonable fees in connection with the registration including, without limitation, the reasonable attorneys' fees of counsel to the Investors. (e) The Company will use all reasonable efforts to ensure that all of its outstanding shares of Common Stock will remain listed on the NYSE or, if shares of the Common Stock are no longer listed on the NYSE for any reason, the NASDAQ National Market, from and after the date of this Agreement. The Company will take all reasonable steps necessary, and pay all reasonable fees required, to list all of the Rights Shares and, when authorized and available, the shares of Common Stock issuable upon conversion of the shares of Series C Preferred Stock on the NYSE (or the NASDAQ National Market). Notwithstanding the foregoing, the Company shall have no obligation to list the shares of Series C Preferred Stock on the NYSE, the NASDAQ National Market or any other securities exchange. (f) Notwithstanding anything to the contrary set forth in the Articles, the Investors waive any adjustment to the Conversion Price of the Participating Preferred Stock that would otherwise be required under Section 4(e) of the Statement of Designation with respect to the Company's issuance of the New Securities to the Investors. For the avoidance of doubt, the Conversion Price will be adjusted as required pursuant to Section 4(e) of the Statement of Designation as a result of any other issuance of Rights Shares in the Rights Offering.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) will prepare and file with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”"REGISTRATION STATEMENT") on Form S-3 (or, if Form S-3 is not then available to the Company, on such form of registration statement as is then available to effect a registration of securities), covering the issuance of the Rights and the Common Stock issuable upon exercise of the Rights in the Rights OfferingShares. The Company shall will not permit any securities other than the Rights and the Rights Shares to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise of the Rights in the Rights OfferingStatement. The Registration Statement (including all pre-effective and post-effective amendmentseach amendment or supplement thereto, and each request for acceleration of effectiveness thereof) and the Proxy Statement (and any amendment) shall will be provided to the Investors Investor and their its counsel prior to its filing with or other submission to the SEC. The Registration Statement will comply in all material respects with the provisions of applicable federal securities laws. The Company promptly will correct any information provided by it for use in the Registration Statement if, and to the extent, that such information becomes false or misleading in any material respect, and the Investors Company will take all steps necessary to cause the Registration Statement, as so corrected, to be filed with the SEC and, upon its effectiveness, to be disseminated to the distributees of the Rights, in each case as and their to the extent required by applicable federal securities laws. The Investor and its counsel shall will be given a reasonable opportunity to review and comment on such documents prior to their being upon the Registration Statement in each instance before it is filed with the SEC. The In addition, the Company shall duly consider in good faith will provide the Investor and its counsel with any written comments of or other written communications that the Investors and their Company or its counsel receives from time to time from the SEC or its staff with respect to the Registration Statement and promptly after the Proxy Statement. (b) The Investors shall provide to the Company receipt of such information as the Company may reasonably request in connection with the preparation and filing of the Registration Statementcomments or other communications. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effective, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall will use its commercially reasonable best efforts to have cause the Registration Statement to be filed pursuant to this Section 2.5(a) and to be declared effective by the SEC as promptly soon as practicable possible after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance Registration Statement is filed with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky lawsSEC. (db) If at any time prior to Promptly following the expiration effective date of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable lawRegistration Statement, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement shall comply in all material respects with the requirements as to form of Form S-11, and the Registration Statement shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The final prospectus relating to commence the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b)Offering. The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of In the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 are referred to as the “10b-5 Representation.” (f) Promptly following the date on which the Registration Statement is declared effective by the SEC, the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering on the following terms: (i) the Company shall will distribute, on a pro rata basis and at no charge, one Right Rights to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Rights Offering Record Date. In accordance with the terms of the Rights Offering, (ii) each such Right shall be transferable. The Rights will entitle the holder thereof to purchase, at the election of such holderthe holder thereof, a its pro rata number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, Rights Shares at the Rights Subscription Price; provided, thereby entitling such holders of Rights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 shares of Common Stock (such actual aggregate numberthat, the “Aggregate Offered Shares”), provided that no fractional shares of Common Stock shall be issued and the Rights Subscription Price multiplied by the aggregate number of shares of Common Stock Rights Shares offered shall not exceed the aggregate offering amount described Aggregate Offering Amount; provided that such number may be adjusted in an equitable manner to avoid fractional Rights and/or Rights Shares and to ensure that the Registration Statement, (iii) each such Right shall be transferable, (iv) gross proceeds of the rights offering shall Rights Offering equal $50 million. The Rights Offering will remain open for at least sixteen thirty (1630) days. The Rights shall expire at 5:00 p.m., New York City time on the day following such thirtieth (30th) day, except as such expiration date or such longer period as required by Law or as reasonably determined by the Company (such period, as time may be extended by the Company or otherwise as may be required by applicable law or NYSE listing rule. (c) Each holder of Rights, other than the Investor, who exercises in full its sole discretion, the “Basic Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall Privilege will be entitled to subscribe for additional shares Rights Shares at the Subscription Price to the extent that other holders of Common Stock that were Rights do not subscribed for exercise all of their Rights in the Rights Offering (Basic Subscription Privilege. If the “Oversubscription Privilege”); provided, if the remaining number of unsubscribed shares Rights Shares remaining after the exercise of Common Stock are insufficient all Basic Subscription Privileges is not sufficient to satisfy all oversubscription requests pursuant Over-subscription Privileges, the Rights holders who exercised their Basic Subscription Privileges in full, other than the Investor, will be allocated Rights Shares pro rata and in proportion to the Oversubscription number of Rights Shares purchased through the Basic Subscription Privilege. If the pro rata allocation exceeds the number of Rights Shares requested on the subscription certificate, all overthen each Rights holder only will receive the number of Rights Shares requested, and the remaining Rights Shares from such Rights holder's pro rata allocation will be divided among other Rights holders exercising their Over-subscription requests shall be honored on a Privileges. If the pro rata basis in allocation is less than the manner to be set forth in number of Rights Shares requested on the Prospectussubscription certificate, (vi) no Person may exercise then the excess funds paid by that Rights holder as the Subscription Price for the Rights Shares not issued will be returned to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”)holder without interest or deduction. (gd) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) or waive any material conditions to the closing of the Rights Offering without the prior written consent purchase of the InvestorsOver-subscription Privilege by each Rights holder will occur at the time, which consent may be withheld by for the Investors Subscription Price, in their sole discretion. Subject to the manner, and on the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur in the manner and on the terms of the Rights Offering in Section 2.1(f), as shall will be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business DaysRegistration Statement. (he) The Company shall will pay all of its expenses associated with the Registration Statement, the Prospectus, Statement and the Rights Offering and the other transactions contemplated herebyOffering, including including, without limitation, filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and expenses, costs associated with clearing the Common Stock offered thereby Rights Shares for sale under applicable state securities Lawslaws, listing fees and the Investor's reasonable fees in connection with the registration, including, without limitation, the reasonable attorneys' fees of counsel to the Investor. (f) The Company shall, within three (3) Business Days of consummating the Rights Offering (after giving effect to compliance by the Investor with its obligations under Section 2.3 hereof), contribute the net proceeds of the Rights Offering to RCPC in the form of a capital contribution or in such other form as RCPC and the Company may agree and as may be permitted under the Bank Credit Agreement.

The Rights Offering. (a) As The Company shall as promptly as reasonably practicable after the date of this Agreement, but in no consultation with Investors, (i) file a prospectus with the SEC pursuant to Rule 424(b) under the Securities Act (the “Prospectus”) with the SEC and thereafter commence the Rights Offering, (ii) to the extent required by applicable Law, as promptly as reasonably practicable prepare and file any supplement or amendment to the Prospectus and distribute to the Eligible Stockholders any supplement or amendment to the Registration Statement if any event later than one shall occur which requires such action at any time prior to the closing of the Rights Offering, and (1iii) Business Day following otherwise use its commercially reasonable efforts to comply with all requirements of Law applicable to the date Rights Offering. (b) In furtherance of this Agreementthe Rights Offering, the Company shall take all necessary action including but not limited to (i) prepare engaging a dealer-manager, a subscription agent and file with an information agent in respect of the Rights Offering, if and as the Company may determine appropriate in its sole discretion, (ii) the establishment of the Record Date for the Rights Offering, (iii) notification to NYSE of the intended Rights Offering and the Record Date in a timely manner promptly following the notice from the SEC that SEC has no further comments to the Proxy Registration Statement or that it will not review the Registration Statement and (iiiv) prepare and file filing with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”), covering the issuance NYSE of the Rights and the Common Stock issuable upon exercise listing of the Rights in the Rights Offering. The Company shall not permit any securities to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise additional shares. (c) Each of the Rights in the Rights Offering. The Registration Statement (including all pre-effective Company and post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to the Investors and their counsel prior to its filing with the SEC, and the Investors and their respective counsel shall be given a reasonable opportunity to review and comment on the Prospectus before any such documents prior to their being document is filed with the SECSEC (it being understood that each of the Company and Investors and their respective counsel shall provide any comments thereon as soon as reasonably practicable), and each party shall give reasonable and good faith consideration to any comments made by the other party and its counsel. The Company shall duly consider in good faith notify Investors promptly upon the receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus and shall supply Investors with copies of all written correspondence between the Company or any of its representatives, on the one hand, and their counsel the SEC, on the other hand, with respect to the Registration Statement and the Proxy Statement. (b) The Investors shall provide to the Company such information as the Company may reasonably request in connection with the preparation and filing of the Registration StatementProspectus. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effective, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its commercially reasonable best efforts to have the Registration Statement declared effective by the SEC respond as promptly as practicable after to any comments received from the SEC concerning the Registration Statement or the Prospectus and to resolve such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance comments with the applicable provisions SEC, and shall use its commercially reasonable efforts to cause the Prospectus to be disseminated to its stockholders as promptly as reasonably practicable after the resolution of the Securities Act and the Exchange Act and any state or foreign securities or blue sky lawssuch comments. (d) If at any time prior to Promptly after the expiration filing of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply Prospectus with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement shall comply in all material respects with the requirements as to form of Form S-11, and the Registration Statement shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 are referred to as the “10b-5 Representation.” (f) Promptly following the date on which the Registration Statement is declared effective by the SEC, the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to stockholders of record as of the Record Date Eligible Stockholders and thereafter promptly commence the Rights Offering on the following termsterms and conditions set forth in the Prospectus and this Agreement, including Exhibit A, pursuant to which Rights Offering: (i) the Company shall distributedistribute to the Eligible Stockholders, at no charge, one Right to each holder of record of Common Stock for each every issued and outstanding share of Common Stock held by such holder as of the Record DateStock, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, thereby entitling such holders of Rights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 shares one share of Common Stock (the aggregate number of such actual aggregate numbershares of Common Stock, the “Aggregate Offered Shares”), provided that no fractional shares of Common Stock shall be issued and the Rights Subscription Price multiplied by the aggregate number of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statement, (iii) each such Right shall not be transferable, and (iv) the rights offering shall remain open for at least sixteen (16) days, or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for in the Rights Offering (the “Oversubscription Privilege”); provided, if the remaining number of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilege, all over-subscription requests shall be honored on a pro rata basis in the manner to be set forth in the Prospectus, (vi) no Person may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”). (g) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) or waive any material conditions to the closing of the Rights Offering without shall be conditioned upon the prior written consent receipt of the Investors, which consent may be withheld by the Investors in their sole discretion. Subject to the terms Requisite Vote and conditions consummation of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur in the manner and on the terms of the Rights Offering in Section 2.1(f), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (h) The Company shall pay all of its expenses associated with the Registration Statement, the Prospectus, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Lawsby this Agreement.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the The Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) prepare and file with the SEC is preparing a registration statement on Form S-11 (including each amendment and supplement thereto, the “Rights Offering Registration Statement”), ) on Form S-1 covering the issuance of the Rights and the shares of Common Stock issuable upon exercise of the Rights in to be issued pursuant to the Rights Offering. The Company shall not permit any securities to be included in has furnished the Registration Statement other than the Rights and the Common Stock issuable upon exercise latest draft of the Rights in Offering Registration Statement to the Investor. The Company intends to use its commercially reasonable efforts to (i) cause the Rights Offering. The Offering Registration Statement (including all pre-effective and post-effective amendments) and the Proxy Statement (and any amendment) shall to be provided to the Investors and their counsel prior to its filing with the SEC, and the Investors and their counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with the SEC. The Company shall duly consider in good faith any comments SEC as promptly as practicable after the execution and delivery of this Agreement; (ii) cause the Investors and their counsel to the Rights Offering Registration Statement and the Proxy Statement. (b) The Investors shall provide to the Company such information as the Company may reasonably request in connection with the preparation and filing of the Registration Statement. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effective, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering practicable; and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement shall comply in all material respects with the requirements as to form of Form S-11, and the Registration Statement shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 are referred to as the “10b-5 Representation.” (f) Promptly following the date on which the Registration Statement is declared effective by the SEC, the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering on the following terms: (i) the Company shall distribute, at no charge, one Right to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Record Date, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, thereby entitling such holders of Rights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 shares of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”), provided that no fractional shares of Common Stock shall be issued and the Rights Subscription Price multiplied by the aggregate number of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statement, (iii) each such Right shall be transferable, (iv) the rights offering shall remain open for at least sixteen (16) days, or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for in the Rights Offering (the “Oversubscription Privilege”); provided, if the remaining number of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilege, all over-subscription requests shall be honored on a pro rata basis in the manner to be set forth in the Prospectus, (vi) no Person may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”). (g) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) or waive any material conditions to the closing of the Rights Offering without the prior written consent of the Investors, which consent may be withheld by the Investors in their sole discretion. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of commence the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing effective date of the Rights Offering Registration Statement. The Company shall occur in have the manner sole and on the terms of absolute right to terminate the Rights Offering without closing on the purchase and sale of any shares of Common Stock thereunder and hereunder. Upon any such termination, the obligations of the Investor under this Agreement shall terminate without any obligation to purchase shares of Common Stock pursuant to Section 1.2 hereof, and the provisions of Section 7 hereof shall remain in Section 2.1(f)effect. (b) The Company shall (i) not permit any securities other than the Rights and the shares of Common Stock underlying the Rights to be included in the Rights Offering Registration Statement; (ii) furnish to the Investor each amendment or supplement to the Rights Offering Registration Statement prior to its filing with or other submission to the SEC and shall afford the Investor a reasonable opportunity (but in any event not less than 48 hours after receipt by the Investor) to review and comment upon such amendment or supplement in each instance before it is filed with the SEC; (iii) provide the Investor with any written comments or other written communications that the Company or its counsel receives from time to time from the SEC with respect to the Rights Offering Registration Statement promptly after the receipt of such comments or other communications; and (iv) correct any information in the Rights Offering Registration Statement if, and to the extent, that such information becomes false or misleading in any material respect, and take all steps necessary to cause the Rights Offering Registration Statement, as so corrected, to be filed with the SEC and, upon its effectiveness, to be disseminated to the distributees of the Rights, in each case as and to the extent required by applicable federal securities laws. (c) The Investor shall use his reasonable and good faith efforts to cooperate with the Company in its efforts to file the Rights Offering Registration Statement and to cause it to be set forth in declared effective by the ProspectusSEC as promptly as practicable. Notwithstanding In that connection, and without limiting the foregoing, the Investor shall furnish to the Company such information regarding himself as the Company or its counsel may extend reasonably request for disclosure in the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (h) The Company shall pay all of its expenses associated with the Rights Offering Registration Statement, and the ProspectusInvestor hereby represents and warrants that such information will be true, correct and complete, and covenants to promptly provide the Company with any information that may be necessary in order to correct such information to the extent it ceases for any reason to continue to be true, correct and complete; and the Company shall have the right to include in the Rights Offering Registration Statement all such information so furnished, as well as a description of this Agreement and a copy hereof as an Exhibit to the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities LawsRights Offering Registration Statement.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) use its commercially reasonable efforts to prepare and file with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”)) on Form S-3, covering the issuance of the Rights and the Common Stock issuable upon exercise of the Rights in the Rights Offering. The Company shall not permit any securities to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise of the Rights to be issued in the Rights Offering. The Registration Statement (including all pre-effective and any post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to the Investors Investor and their its counsel prior to its filing with the SEC, and the Investors Investor and their its counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with upon the SECRegistration Statement (and any post-effective amendments). The Company shall duly consider in good faith any use its commercially reasonable efforts to, as promptly as practicable, (i) respond to comments of the Investors and their counsel to the Registration Statement raised by the staff of the SEC and (ii) cause the Proxy StatementRegistration Statement and any post-effective amendment to be declared effective by the SEC. (b) The Investors shall provide to the Company such information and other assistance as the Company it may reasonably request require in connection with the preparation and filing of the Registration StatementStatement and the Prospectus. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effectiveeffective and as of the date of the Prospectus, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement (as amended or supplemented) shall comply in all material respects with the requirements as to form of Form S-11S-3, and the Registration Statement and any Company SEC Documents incorporated by reference therein shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b1.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b1.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 previous two sentences are referred to as the “10b-5 Representation.” (fd) Promptly following the date on which the Registration Statement is declared effective by the SECSEC (the “Registration Effective Date”), the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to the Company’s stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering a rights offering on the following terms: (i) the Company shall distribute, at no charge, one Right to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Record Date, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a such number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, Price thereby entitling such holders of Rightsrights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 11,818,181 shares of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”) of Common Stock (the “Basic Subscription Right”), provided that no fractional shares of Common Stock shall be issued and pursuant to the Rights Subscription Price multiplied by the aggregate number exercise of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statementany Rights, (iii) each such Right shall be non-transferable, (iv) the rights offering shall remain open for at least sixteen (16) days, but no more than twenty (20) days or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for under the Basic Subscription Right in an amount equal to up to 20% of the Rights Offering shares of Common Stock for which such holder subscribed under the Basic Subscription Right (calculated prior to the exercise of any Rights) (the “Oversubscription PrivilegeOver-Subscription Right”); providedprovided that, if the insufficient remaining number shares of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilegeavailable, all over-subscription requests shall be honored on a pro rata basis in among Rights holders who exercise the manner to be set forth in Over-Subscription Right (based on the ProspectusBasic Subscription Rights exercised), (vi) no Person (other than the Investors and their Affiliates) may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.814.99% of the outstanding Capital Common Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person (other than the Investors and their Affiliates) who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.814.99% of the outstanding Capital Common Stock shall be entitled to exercise the Rights (including any overOver-subscription rightSubscription Right) only to the extent necessary to maintain the same its proportionate Beneficial Ownership percentage that such Person had interest in the Capital Common Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (collectively, such rights offering, the “Rights Offering”). (ge) The Prior to the expiration or termination of this Agreement in accordance with Article VI, the Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) 1.1(d), terminate the Rights Offering or waive any material conditions to the closing of the Rights Offering Offering, without the prior written consent of the Investors, which consent may be withheld by unless the Investors in their sole discretionfull Board (and not a committee of the Board) approves such amendment, termination or waiver. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur at the time, for the Rights Subscription Price and in the manner and on the terms of the Rights Offering set forth in Section 2.1(f1.1(d), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (hf) The Company shall pay all of its expenses associated with the Registration Statement, the Prospectus, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Laws.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) prepare and file with the SEC a prospectus supplement (including each amendment thereto, the “Prospectus Supplement”) to its existing registration statement on Form S-11 S-3 (File No. 333-139058) (including each amendment and supplement thereto, including the Prospectus Supplement, the “Registration Statement”), covering which shall register under the Securities Act the issuance of the Rights Warrants and the shares of Common Stock issuable to be issued upon exercise of the Rights in the Rights OfferingWarrants. The Company shall not permit any other securities to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise of the Rights in the Rights OfferingProspectus Supplement. The Registration Statement (including all pre-effective and post-effective amendments) and the Proxy Statement Prospectus Supplement (and any amendmentamendments thereto) and any amendments to the Registration Statement proposed to be filed with the SEC after the date hereof shall be provided to the Investors Investor and their its counsel prior to its their filing with the SEC, and the Investors Investor and their its counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with the SEC. The Company shall duly consider in good faith any comments of the Investors and their counsel to the Registration Statement and the Proxy Statementthereon. (b) The Investors Investor shall provide to the Company such information as the Company may reasonably request require in connection with the preparation and filing of the Registration StatementProspectus Supplement. At the time such information is provided and at the respective times time the Registration Statement and any post-effective amendments thereto become effectiveProspectus Supplement is filed, no such information provided by the Investors Investor shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times time the Registration Statement and any post-effective amendments thereto become effectiveProspectus Supplement is filed, the Registration Statement shall comply in all material respects with the requirements as to the use and form of Form S-11S-3, and the Registration Statement and any Company SEC Documents incorporated by reference therein shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, provided that the Company shall make makes no such representation with respect to information provided to it by the Investors under Investor pursuant to Section 2.1(b). Each Preliminary ProspectusThe Prospectus Supplement, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, provided that the Company shall make makes no such representation with respect to information provided to it by the Investors under Investor pursuant to Section 2.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 previous two sentences are referred to as the “10b-5 Representation.” (fd) Promptly following the date on which filing of the Registration Statement is declared effective by the SECProspectus Supplement, the Company shall print and file with the SEC the Prospectus, distribute copies of the Prospectus Supplement to stockholders the holders of record of Common Stock as of the Record Date Date, and thereafter promptly commence the Rights Offering a rights offering on the following terms: (i) the Company shall distribute, at no charge, one Right (1) Warrant to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Record Date, ; (ii) each Right whole Warrant shall entitle the holder thereof to purchase, at the election of such holder, a number of shares one share of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription PricePrice (the “Basic Subscription Privilege”), thereby entitling such holders of Rightsto subscribe for, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 35.7 million (35,700,000) shares of Common Stock (such the actual aggregate number, the “Aggregate Offered Shares”), provided that no fractional Warrants and no fractional shares of Common Stock shall be issued and the Rights Subscription Price multiplied by the aggregate number of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statement, Prospectus Supplement; (iii) each such Right shall be transferable, (iv) the rights offering shall remain open for at least sixteen thirteen (1613) days, but no more than twenty (20) days (or such longer period as may be required by Law or as reasonably determined by the Company Law) (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), ; and (viv) each holder who fully exercises all Rights held by such holder his Basic Subscription Privilege shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for in the Rights Offering offering in an amount equal to up to 32% of the shares of Common Stock for which he was entitled to subscribe through his Basic Subscription Privilege (the “Oversubscription Privilege”); provided, provided that if the remaining number of unsubscribed insufficient shares of Common Stock are insufficient available to satisfy all oversubscription requests pursuant to the Oversubscription Privilegerequests, all over-subscription such requests shall be honored on a pro rata basis in the manner to be set forth in the Prospectus, (vi) no Person may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”). (ge) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(iclauses (i) through (viv) of Section 2.1(d) or waive any material conditions to the closing of the Rights Offering without the prior written consent of the Investors, which consent may be withheld by the Investors in their sole discretionInvestor. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of . (f) Notwithstanding anything in this Agreement to the contrary, the Company may terminate the Rights Offering, and fail to file or withdraw the Prospectus, at any time for any reason; provided that the failure to take commercially reasonable efforts to initiate or continue the Rights Offering shall occur in the manner and on the terms be deemed to be a termination thereof for purposes of the Rights Offering in Section 2.1(f9.1(a), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (hg) The Company shall pay all of its expenses associated with the Registration Statement, the ProspectusProspectus Supplement, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, the fees and expenses of any subscription and information agents, the fees and expenses of its counsel and counsel, accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Laws.

The Rights Offering. (a) As promptly as practicable after approval of the date of this Agreement, but in no event later than one (1) Business Day following Stockholder Proposal by the date of this AgreementStockholders, the Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) prepare and file with the SEC a prospectus supplement (including each amendment thereto, the “Prospectus Supplement”) to its existing registration statement on Form S-11 S-3 (File No. 333-163193) (including each amendment and supplement thereto, including the Prospectus Supplement, the “Registration Statement”), covering which shall register under the Securities Act the issuance of the Rights and the Common shares of Preferred Stock issuable upon exercise of the Rights to be issued in the Rights OfferingOffering (including the Backstop Shares). The Company shall not permit any other securities to be included offered in the Registration Statement other than the Rights and the Common Stock issuable upon exercise of the Rights in the Rights OfferingProspectus Supplement. The Registration Statement (including all pre-effective and post-effective amendments) and the Proxy Statement Prospectus Supplement (and any amendmentamendments thereto) shall be provided to the Investors and their counsel prior to its filing with the SEC, and the Investors and their counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with the SEC. The Company shall duly consider in good faith any comments of the Investors and their counsel amendments to the Registration Statement proposed to be filed with the SEC after the date hereof shall be promptly provided to the Investor and its counsel and shall not be filed with the Proxy StatementSEC without the Investor’s prior consent, which shall not be unreasonably withheld. (b) The Investors Investor shall provide to the Company such information as the Company may reasonably request require in connection with the preparation and filing of the Registration StatementProspectus Supplement. At the time such information is provided and at the respective times time the Registration Statement and any post-effective amendments thereto become effectiveProspectus Supplement is filed, no such information provided by the Investors Investor shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (ec) At the respective times time the Registration Statement and any post-effective amendments thereto become effectiveProspectus Supplement is filed, the Registration Statement shall comply in all material respects with the requirements as to the use and form of Form S-11S-3, and the Registration Statement and any Company SEC Documents incorporated by reference therein shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, provided that the Company shall make makes no such representation with respect to information provided to it by the Investors under Investor pursuant to Section 2.1(b). Each Preliminary ProspectusThe Prospectus Supplement, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, provided that the Company shall make makes no such representation with respect to information provided to it by the Investors under Investor pursuant to Section 2.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 previous two sentences are referred to as the “10b-5 Representation.” (fd) Promptly following the date on which filing of the Registration Statement is declared effective by the SECProspectus Supplement, the Company shall print and file with the SEC the Prospectus, distribute copies of the Prospectus Supplement to stockholders the holders of record of Common Stock as of the Record Date Date, and thereafter promptly commence a rights offering (such rights offering, the “Rights Offering Offering”) on the following terms: (i) the Company shall distribute, at no charge, one one (1) Right to each holder of record of Common Stock for each share of Common Stock Share Grouping held by such holder as of the Record Date, provided that the Company shall distribute one (1) Right to any holder of less than one Share Grouping as of the Record Date; (ii) each whole Right shall entitle the holder thereof to purchase, at the election of such holder, a number one share of shares of Common Preferred Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, thereby entitling such holders of Rightsto subscribe for, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 shares of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”), provided that no fractional Rights and no fractional shares of Common Preferred Stock shall be issued and the Rights Subscription Price multiplied by the aggregate number of shares of Common Preferred Stock offered shall not exceed the aggregate offering amount described in the Registration Statement, Prospectus Supplement; and (iii) each such Right shall be transferable, (iv) the rights offering shall remain open for at least sixteen no more than fifteen (1615) days, Business Days (or such longer period as may be required by Law or as reasonably determined by the Company Law) (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for in the Rights Offering (the “Oversubscription Privilege”); provided, if the remaining number of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilege, all over-subscription requests shall be honored on a pro rata basis in the manner to be set forth in the Prospectus, (vi) no Person may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”). (ge) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(iclauses (i) through (viii) of Section 2.1(d) or waive any material conditions to the closing of the Rights Offering without the prior written consent of the Investors, which consent may be withheld by the Investors in their sole discretionInvestor. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of . (f) Notwithstanding anything in this Agreement to the contrary, the Company may terminate the Rights Offering, and fail to file or withdraw the Prospectus, at any time for any reason; provided that the failure to take commercially reasonable efforts to initiate or continue the Rights Offering shall occur in the manner and on the terms be deemed to be a termination thereof for purposes of the Rights Offering in Section 2.1(f9.1(a), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (hg) The Company shall pay all of its expenses associated with the Registration Statement, the ProspectusProspectus Supplement, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, the fees and expenses of any subscription and information agents, the fees and expenses of its counsel and counsel, accounting fees and expenses and costs associated with clearing the Common Preferred Stock offered thereby for sale under applicable state securities Laws.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the Company shall (i) use commercially reasonable efforts to prepare and file with the SEC Securities and Exchange Commission (the Proxy Statement and (ii“SEC”) prepare and file with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”)) under the Securities Act of 1933 (the “Securities Act”) on Form S-1, covering the issuance offer and sale of the Rights and the Common Stock issuable upon exercise of the Rights New Shares in the Rights Offering. The Company shall not permit any securities to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise of the Rights New Shares to be issued in the Rights Offering. The Registration Statement (including all pre-effective and post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to the Investors and their counsel prior to its filing with the SEC, and the Investors and their counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with upon the SECRegistration Statement (and any post-effective amendments). The Company shall duly consider in good faith any use commercially reasonable efforts to, as promptly as practicable, (i) respond to comments of the Investors and their counsel to the Registration Statement raised by the staff of the SEC and (ii) cause the Proxy StatementRegistration Statement and any post-effective amendment to be declared effective by the SEC. (b) The Investors shall provide to the Company such information and other assistance as the Company it may reasonably request require in connection with the preparation and filing of the Registration StatementStatement and the final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”). At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effectiveeffective and as of the date of the Prospectus, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement shall comply in all material respects with the requirements as to form of Form S-11S-1, and the Registration Statement and any documents incorporated by reference therein shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b)for inclusion therein. Each Preliminary The Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b)for inclusion therein. The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 previous two sentences are referred to as the “10b-5 Representation.” (fd) Promptly following the date on which the Registration Statement is declared effective by the SECSEC (the “Registration Effective Date”), the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to the Company’s stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering a rights offering on the following terms: (i) the Company shall distribute, at no charge, one Right to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Record Date, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a such number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, Price thereby entitling such holders of Rights, in the aggregate, to subscribe for an aggregate number of approximately 15,797,788 shares of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”), ) of Common Stock equal to $2.6 million divided by the Subscription Price; provided that no fractional shares of Common Stock shall be issued and pursuant to the Rights Subscription Price multiplied by the aggregate number exercise of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statementany Rights, (iii) each such Right shall be transferablenon-transferable (provided that unexercised rights will be transferable only to the extent that the Aggregate Offered Shares to which they are attached are transferred from and after the Record Date), (iv) the rights offering shall remain open for at least sixteen (16) days, but no more than thirty days or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder no Person (other than the Investors and their Affiliates, who fully exercises all Rights held may acquire New Shares as contemplated by such holder shall this Agreement) will be entitled to subscribe for additional shares of Common Stock that were not subscribed for in the Rights Offering (the “Oversubscription Privilege”); provided, if the remaining number of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilege, all over-subscription requests shall be honored on a pro rata basis in the manner to be set forth in the Prospectus, (vi) no Person may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership Ownership, or ownership for purposes of section 382 of the Internal Revenue Code of 1986, as amended, in excess of 9.84.9% of the outstanding Capital Common Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (viivi) any Person (other than the Investors and their Affiliates) who is, prior to on the consummation date of the Rights Offeringthis Agreement, the Beneficial Owner of in excess of 9.84.9% of the outstanding Capital Common Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same her, his or its proportionate Beneficial Ownership percentage that such Person had interest in the Capital Common Stock of on the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”)date hereof. (ge) The Prior to the termination of this Agreement, the Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through 1.1 (v) d), terminate the Rights Offering or waive any material conditions to the closing of the Rights Offering Offering, without the prior written consent of Novelty Capital Partners LP on behalf of all of the Investors, which consent may be withheld by the Investors in their sole discretion. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur at the time, for the Subscription Price and in the manner and on the terms of the Rights Offering in Section 2.1(f1.1 ‎(d), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (hf) The Company shall pay all of its expenses associated with the Registration Statement, the Prospectus, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Laws.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) use its reasonable best efforts to prepare and file with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”)) on Form S-3, covering the issuance of the Rights and Rights, the Common Stock issuable upon exercise of the Rights in the Rights OfferingOffering (including the Backstop Acquired Shares), the Additional Acquired Shares, the Preferred Stock that may be issued in accordance with Section 2.2 of this Agreement and the Xxxxxx Shares. The Company shall not permit any securities to be included in the Registration Statement other than the Rights and Rights, the Common Stock issuable upon exercise of the Rights to be issued in the Rights OfferingOffering (including the Backstop Acquired Shares), the Additional Acquired Shares, the Preferred Stock that may be issued in accordance with Section 2.2 of this Agreement and the Xxxxxx Shares. The Registration Statement (including all pre-effective and any post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to the Investors Investor and their its counsel prior to its filing with the SEC, and the Investors Investor and their its counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with upon the SECRegistration Statement (and any post-effective amendments). The Company shall duly consider in good faith any use its reasonable best efforts to, as promptly as practicable, (i) respond to comments of the Investors and their counsel to the Registration Statement raised by the staff of the SEC and (ii) cause the Proxy StatementRegistration Statement and any post-effective amendment to be declared effective by the SEC. (b) The Investors Investor shall provide to the Company such information as the Company it may reasonably request require in connection with the preparation and filing of the Registration Statement. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effective, no such information provided by the Investors Investor shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement (as amended or supplemented) shall comply in all material respects with the requirements as to form of Form S-11, S-3 and the Registration Statement and any Company SEC Documents incorporated by reference therein shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors Investor under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b1.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors Investor under Section 2.1(b1.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 previous two sentences are referred to as the “10b-5 Representation.” (fd) Promptly following the date on which the Registration Statement is declared effective by the SECSEC (the “Registration Effective Date”), the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering a rights offering on the following terms: (i) the Company shall distribute, at no charge, one Right to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Record Date, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a such number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, Price thereby entitling such holders of Rightsrights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 twenty million (20,000,000) shares of Common Stock (such the actual aggregate number, the “Aggregate Offered Shares”), provided that no fractional shares of Common Stock shall be issued and the Rights Subscription Price multiplied by the aggregate number of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statement, (iii) each such Right shall be transferable, (iv) the rights offering shall remain open for at least sixteen (16) days, but no more than twenty (20) days or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder who fully exercises all Rights held by such holder him shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for in the Rights Offering in an amount equal to up to 20% of the shares of Common Stock for which he was otherwise entitled to subscribe (calculated prior to the “Oversubscription Privilege”exercise of any Rights); provided, provided if the insufficient remaining number shares of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilegeavailable, all over-subscription requests shall be honored on a pro rata basis in the manner to be set forth in the Prospectusbasis, (vi) no Person may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.814.99% of the outstanding Capital Voting Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.814.99% of the outstanding Capital Voting Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same its proportionate Beneficial Ownership percentage that such Person had interest in the Capital Voting Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”). (ge) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i1.1(d)(i) through (v) vi), terminate the Rights Offering or waive any material conditions to the closing of the Rights Offering Offering, without the prior written consent of the Investors, which consent may be withheld by the Investors in their sole discretionInvestor. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur at the time, for the Rights Subscription Price and in the manner and on the terms of the Rights Offering in Section 2.1(f1.1(d), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (hf) The Company shall pay all of its expenses associated with the Registration Statement, the Prospectus, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Laws.

The Rights Offering. (a) As The Company shall as promptly as reasonably practicable after the date of this Agreement, but in no consultation with Investors, (i) file an amendment to the Prospectus Supplement with the SEC pursuant to Rule 424(b) under the Securities Act (the “Prospectus Supplement Amendment”) and distribute the Prospectus Supplement Amendment to the Eligible Stockholders, (ii) to the extent required by applicable Law, as promptly as reasonably practicable prepare and file any additional supplement or amendment to the Prospectus Supplement and distribute to the Eligible Stockholders any supplement or amendment to the Registration Statement if any event later than one shall occur which requires such action at any time prior to the closing of the Rights Offering, and (1iii) Business Day following otherwise use its commercially reasonable efforts to comply with all requirements of Law applicable to the date Rights Offering. (b) In furtherance of this Agreementthe Rights Offering, the Company shall take all necessary action not previously taken including but not limited to (i) prepare and file with notification to NYSE of the SEC amendments to the Proxy Statement Rights Offering and (ii) prepare and file filing with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”), covering the issuance NYSE of the Rights and the Common Stock issuable upon exercise listing of the Rights in the Rights Offering. The Company shall not permit any securities to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise additional shares. (c) Each of the Rights in the Rights Offering. The Registration Statement (including all pre-effective Company and post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to the Investors and their counsel prior to its filing with the SEC, and the Investors and their respective counsel shall be given a reasonable opportunity to review and comment on the Prospectus Supplement Amendment before any such documents prior to their being document is filed with the SECSEC (it being understood that each of the Company and Investors and their respective counsel shall provide any comments thereon as soon as reasonably practicable), and each party shall give reasonable and good faith consideration to any comments made by the other party and its counsel. The Company shall duly consider in good faith notify Investors promptly upon the receipt of any comments from the SEC and of any request by the Investors and their counsel SEC for amendments or supplements to the Registration Statement Statement, the Prospectus Supplement or the Prospectus Supplement Amendment and shall supply Investors with copies of all written correspondence between the Company or any of its representatives, on the one hand, and the Proxy Statement. (b) The Investors shall provide SEC, on the other hand, with respect to the Company such information as the Company may reasonably request in connection with the preparation and filing of the Registration Statement, the Prospectus Supplement and the Prospectus Supplement Amendment. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effective, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its commercially reasonable best efforts to have the Registration Statement declared effective by the SEC respond as promptly as practicable after to any comments received from the SEC concerning the Registration Statement, the Prospectus Supplement or the Prospectus Supplement Amendment and to resolve such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance comments with the applicable provisions SEC, and shall use its commercially reasonable efforts to cause the Prospectus Supplement Amendment to be disseminated to its stockholders as promptly as reasonably practicable after the resolution of the Securities Act and the Exchange Act and any state or foreign securities or blue sky lawssuch comments. (d) If at any time prior to Promptly after the expiration filing of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply Prospectus Supplement Amendment with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement shall comply in all material respects with the requirements as to form of Form S-11, and the Registration Statement shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 are referred to as the “10b-5 Representation.” (f) Promptly following the date on which the Registration Statement is declared effective by the SEC, the Company shall print and file with the SEC the Prospectus, distribute the Prospectus Supplement Amendment to stockholders of record as of the Record Date Eligible Stockholders reflecting the terms and thereafter promptly commence conditions set forth in the Prospectus Supplement Amendment and this Agreement, including Exhibit A, pursuant to which Rights Offering on the following termsOffering: (i) the Company shall distributedistributed to the Eligible Stockholders, at no charge, one Right to each holder of record of Common Stock for each every issued and outstanding share of Common Stock held by such holder as of the Record DateStock, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, thereby entitling such holders of Rights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 1.1 shares of Common Stock (the aggregate number of such actual aggregate numbershares of Common Stock, the “Aggregate Offered Shares”), provided that no fractional shares of Common Stock shall be issued and the Rights Subscription Price multiplied by the aggregate number of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statement, (iii) each such Right shall not be transferable, and (iv) the rights offering shall remain open for at least sixteen (16) days, or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for in the Rights Offering (the “Oversubscription Privilege”); provided, if the remaining number of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilege, all over-subscription requests shall be honored on a pro rata basis in the manner to be set forth in the Prospectus, (vi) no Person may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”). (g) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) or waive any material conditions to the closing of the Rights Offering without shall be conditioned upon the prior written consent receipt of the Investors, which consent may be withheld by the Investors in their sole discretion. Subject to the terms Requisite Vote and conditions consummation of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur in the manner and on the terms of the Rights Offering in Section 2.1(f), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (h) The Company shall pay all of its expenses associated with the Registration Statement, the Prospectus, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Lawsby this Agreement.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) use its commercially reasonable efforts to prepare and file with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”)) on Form S-1, covering the issuance of the Rights and the Common Stock issuable upon exercise of the Rights in the Rights Offering. The Company shall not permit any securities to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise of the Rights to be issued in the Rights Offering. The Registration Statement (including all pre-effective and any post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to the Investors Investor and their its counsel prior to its filing with the SEC, and the Investors Investor and their its counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with upon the SECRegistration Statement (and any post-effective amendments). The Company shall duly consider in good faith any use its commercially reasonable efforts to, as promptly as practicable, (i) respond to comments of the Investors and their counsel to the Registration Statement raised by the staff of the SEC and (ii) cause the Proxy StatementRegistration Statement and any post-effective amendment to be declared effective by the SEC. (b) The Investors Investor shall provide to the Company such information and other assistance as the Company it may reasonably request require in connection with the preparation and filing of the Registration StatementStatement and the Prospectus. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effectiveeffective and as of the date of the Prospectus, no such information provided by the Investors Investor shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement (as amended or supplemented) shall comply in all material respects with the requirements as to form of Form S-11S-1, and the Registration Statement and any Company SEC Documents incorporated by reference therein shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors Investor under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b1.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors Investor under Section 2.1(b1.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 previous two sentences are referred to as the “10b-5 Representation.” (fd) Promptly following the date on which the Registration Statement is declared effective by the SECSEC (the “Registration Effective Date”), the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to the Company’s stockholders of record as of the Record Date and thereafter promptly commence a rights offering (the “Rights Offering Offering”) on the following terms: (i) the Company shall distribute, at no charge, one Right to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Record Date, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a number of shares one share of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, Price thereby entitling such holders of Rightsrights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 9,348,388 shares of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”) of Common Stock (the “Basic Subscription Right”), provided that no fractional shares of Common Stock shall be issued and pursuant to the Rights Subscription Price multiplied by the aggregate number exercise of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statementany Rights, (iii) each such Right shall be non-transferable, (iv) the rights offering shall remain open for at least sixteen (16) days, but no more than thirty (30) days or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), and (v) each holder who fully exercises all Rights held by such holder shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for under the Basic Subscription Right in an amount equal to up to 100% of the Rights Offering shares of Common Stock for which such holder subscribed under the Basic Subscription Right (calculated prior to the exercise of any Rights) (the “Oversubscription PrivilegeOver-Subscription Right”); providedprovided that, if the insufficient remaining number shares of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilegeavailable, all over-subscription requests shall be honored on a pro rata basis in the manner to be set forth in the Prospectus, (vi) no Person may among Rights holders who exercise the Over-Subscription Right (based on the Basic Subscription Rights exercised). In addition, the Investor’s ability to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership participate in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior will be subject to the consummation of limitation that the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall Investor will not be entitled to exercise the Rights (including any overprovided with an Over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”)Subscription Right. (ge) The Prior to the expiration or termination of this Agreement in accordance with Article VI, the Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) 1.1(d), terminate the Rights Offering or waive any material conditions to the closing of the Rights Offering Offering, without the prior written consent of the InvestorsInvestor, which consent may be withheld by unless the Investors in their sole discretionfull Board (and not a committee of the Board) approves such amendment, termination or waiver. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur at the time, for the Rights Subscription Price and in the manner and on the terms of the Rights Offering set forth in Section 2.1(f1.1(d), and as shall otherwise be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (hf) The Company shall pay all of its expenses associated with the Registration Statement, the Prospectus, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Laws.

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event No later than one thirty (130) Business Day days following the date of this Agreement, the Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) will prepare and file with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Rights Offering Registration Statement”) on Form S-1 (or, if Form S-1 is not then available to the Company, on such form of registration statement as is then available to effect a registration of securities), covering the issuance of the Rights and the shares of Common Stock issuable upon exercise of the Rights in to be issued pursuant to the Rights Offering. The Company shall will not permit any securities to be included in the Registration Statement other than the Rights and the shares of Common Stock issuable upon exercise of to be sold pursuant to the Rights Offering to be included in the Rights OfferingOffering Registration Statement. The Rights Offering Registration Statement (including all pre-effective and post-effective amendmentseach amendment or supplement thereto, and each request for acceleration of effectiveness thereof) and the Proxy Statement (and any amendment) shall will be provided to the Investors Investor and their counsel to Investors’ Counsel prior to its filing with or other submission to the SEC. The Rights Offering Registration Statement will comply in all material respects with the provisions of applicable federal securities laws. The Company promptly will correct any information provided by it for use in the Rights Offering Registration Statement if, and to the extent, that such information becomes false or misleading in any material respect, and the Investors Company will take all steps necessary to cause the Rights Offering Registration Statement, as so corrected, to be filed with the SEC and, upon its effectiveness, to be disseminated to the distributees of the Rights, in each case as and their counsel shall to the extent required by applicable federal securities laws. The Investor and Investors’ Counsel will be given a reasonable opportunity to review and comment on such documents prior to their being upon the Rights Offering Registration Statement in each instance before it is filed with the SEC. In addition, the Company will provide the Investor and Investors’ Counsel with any written comments or other written communications that the Company or its counsel receives from time to time from the SEC or its staff with respect to the Rights Offering Registration Statement promptly after the receipt of such comments or other communications. The Company shall duly consider in good faith any comments of the Investors and their counsel to the Registration Statement and the Proxy Statement. (b) The Investors shall provide to the Company such information as the Company may reasonably request in connection with the preparation and filing of the Registration Statement. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effective, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall will use its reasonable best efforts to have cause the Rights Offering Registration Statement to be filed pursuant to this Section 3.3(a) and to be declared effective by the SEC as promptly soon as practicable possible after such filing. The the Rights Offering Registration Statement is filed with the SEC, provided however that the Company shall take all action as may be reasonably necessary or advisable so procure that the Rights Offering Registration Statement will not be declared effective prior to the date that is ten (10) days following the disbursement of all of the Deposited Funds and the issuance and sale of Deposited Securities pursuant to the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky lawsDisbursing Agency Agreement. (db) If at any time prior to Promptly following the expiration effective date of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable lawRegistration Statement, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement shall comply in all material respects with the requirements as to form of Form S-11, and the Registration Statement shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The final prospectus relating to commence the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b)Offering. The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of In the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 are referred to as the “10b-5 Representation.” (f) Promptly following the date on which the Registration Statement is declared effective by the SEC, the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering on the following terms: (i) the Company shall will distribute, on a pro rata basis and at no charge, one Right Rights to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Rights Offering Record Date. In accordance with the terms of the Rights Offering, (ii) each such Right shall be transferable. Each Right will entitle the holder thereof to purchase, at the election of such holderthe holder thereof, a number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, one Investment Unit at the Rights Subscription Price, thereby entitling such holders of Rights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 shares of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”), provided that no fractional shares of Common Stock shall be issued and the . The Rights Subscription Price multiplied by the aggregate number of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statement, (iii) each such Right shall be transferable, (iv) the rights offering shall Offering will remain open for at least sixteen thirty (1630) days. The Rights shall expire at 5:00 p.m., New York City time on the day following such thirtieth (30th) day, except as such expiration date or such longer period as required by Law or as reasonably determined by the Company (such period, as time may be extended by the Company or otherwise as may be required by applicable law. (c) Each holder of Rights who exercises in full its sole discretion, the “Basic Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall Privilege will be entitled to subscribe for additional shares Investment Units at the Subscription Price to the extent that other holders of Common Stock that were Rights do not subscribed for exercise all of their Rights in the Rights Offering (Basic Subscription Privilege. If the “Oversubscription Privilege”); provided, if the remaining number of unsubscribed shares Investment Units remaining after the exercise of Common Stock are insufficient all Basic Subscription Privileges is not sufficient to satisfy all oversubscription requests pursuant Over-Subscription Privileges, the holders of Rights who exercised their Basic Subscription Privileges in full will be allocated Investment Units pro rata and in proportion to the Oversubscription number of Investment Units purchased through the Basic Subscription Privilege, all over-subscription requests shall be honored on a . If the pro rata basis allocation exceeds the number of Investment Units requested on the subscription certificate, then each Rights holder will receive the number of Investment Units requested, and the remaining Investment Units from such Rights holder’s pro rata allocation will be divided among other Rights holders exercising their Over-Subscription Privileges. If the pro rata allocation is less than the number of Investment Units requested on the subscription certificate, then the excess funds paid by that Rights holder as the Subscription Price for the Investment Units not issued will be returned to such Rights holder without interest or deduction. (d) The closing of the purchase of the Over-Subscription Privilege by each Rights holder will occur at the time, for the Subscription Price, in the manner to be set forth in the Prospectus, (vi) no Person may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.8% of the outstanding Capital Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.8% of the outstanding Capital Stock shall be entitled to exercise the Rights (including any over-subscription right) only to the extent necessary to maintain the same proportionate Beneficial Ownership percentage that such Person had in the Capital Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (such rights offering, the “Rights Offering”). (g) The Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) or waive any material conditions to the closing of the Rights Offering without the prior written consent of the Investors, which consent may be withheld by the Investors in their sole discretion. Subject to on the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur in the manner and on the terms of the Rights Offering in Section 2.1(f), as shall will be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business DaysRights Offering Registration Statement. (he) The Company shall will pay all of its expenses associated with the Private Placement, Rights Offering Registration Statement, the ProspectusRights Offering, the Rights Offering Backstop Issuance, and the all other transactions contemplated herebyhereunder, including including, without limitation, negotiation of the Investment Agreement, the Registration Rights Agreement and the Form of Warrant, due diligence on the NextView Contract, filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and expenses, costs associated with clearing the shares of Common Stock offered thereby and/or the Warrants to be sold pursuant to the Rights Offering for sale under applicable state securities Lawslaws and the Investor’s reasonable fees in connection with the registration, including the reasonable attorneys’ fees and disbursements of Investors’ Counsel (but not attorneys’ fees or disbursements of any other counsel to the Investor or the Investors).

The Rights Offering. (a) As promptly as practicable after the date of this Agreement, but in no event later than one (1) Business Day following the date of this Agreement, the Company shall (i) prepare and file with the SEC the Proxy Statement and (ii) use its commercially reasonable efforts to prepare and file with the SEC a registration statement on Form S-11 (including each amendment and supplement thereto, the “Registration Statement”) on Form S-1 or Form S-3 (as applicable), covering the issuance of the Rights and the Common Stock issuable upon exercise of the Rights in the Rights Offering. The Company shall not permit any securities to be included in the Registration Statement other than the Rights and the Common Stock issuable upon exercise of the Rights to be issued in the Rights Offering. The Registration Statement (including all pre-effective and any post-effective amendments) and the Proxy Statement (and any amendment) shall be provided to the Investors and their counsel prior to its filing with the SEC, and the Investors and their counsel shall be given a reasonable opportunity to review and comment on such documents prior to their being filed with upon the SECRegistration Statement (and any post-effective amendments). The Company shall duly consider in good faith any use its commercially reasonable efforts to, as promptly as practicable, (i) respond to comments of the Investors and their counsel to the Registration Statement raised by the staff of the SEC and (ii) cause the Proxy StatementRegistration Statement and any post-effective amendment to be declared effective by the SEC. (b) The Investors shall provide to the Company such information and other assistance as the Company it may reasonably request require in connection with the preparation and filing of the Registration StatementStatement and the Prospectus. At the time such information is provided and at the respective times the Registration Statement and any post-effective amendments thereto become effectiveeffective and as of the date of the Prospectus, no such information provided by the Investors shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as promptly as practicable after such filing. The Company shall take all action as may be reasonably necessary or advisable so that the Rights Offering and the issuance and sale of the Acquired Shares and the other transactions contemplated by this Agreement will be effected in accordance with the applicable provisions of the Securities Act and the Exchange Act and any state or foreign securities or blue sky laws. (d) If at any time prior to the expiration of the Rights Offering any event occurs as a result of which the Investment Decision Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Investment Decision Package to comply with applicable law, the Company will promptly notify the Investors of any such event and prepare an amendment or supplement to the Investor Decision Package that is reasonably acceptable in form and substance to the Investors that will correct such statement or omission or effect such compliance. (e) At the respective times the Registration Statement and any post-effective amendments thereto become effective, the Registration Statement (as amended or supplemented) shall comply in all material respects with the requirements as to form of Form S-11S-1 or Form S-3 (as applicable), and the Registration Statement and any Company SEC Documents incorporated by reference therein shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). Each Preliminary Prospectus, as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b1.1(b). The final prospectus relating to the Rights Offering filed pursuant to Rule 424 of the Securities Act (as amended or supplemented, the “Prospectus”), as of its date, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b1.1(b). The Investment Decision Package, taken as a whole, as of the date of the commencement of the Rights Offering and as of the date of the expiration of the Rights Offering, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company shall make no such representation with respect to information provided to it by the Investors under Section 2.1(b). The representations set forth in this Section 2.1(e) and in Section 4.7 previous two sentences are referred to as the “10b-5 Representation.” (fd) Promptly following the date on which the Registration Statement is declared effective by the SECSEC (the “Registration Effective Date”), the Company shall print and file with the SEC the Prospectus, distribute the Prospectus to the Company’s stockholders of record as of the Record Date and thereafter promptly commence the Rights Offering a rights offering on the following terms: (i) the Company shall distribute, at no charge, one Right to each holder of record of Common Stock for each share of Common Stock held by such holder as of the Record Date, (ii) each Right shall entitle the holder thereof to purchase, at the election of such holder, a such number of shares of Common Stock equal to (A) 15,797,788 divided by (B) the number of shares of Common Stock outstanding on the Record Date, at the Rights Subscription Price, Price thereby entitling such holders of Rightsrights, in the aggregate, to subscribe for an aggregate of approximately 15,797,788 66,670,610 shares of Common Stock (such actual aggregate number, the “Aggregate Offered Shares”) of Common Stock (the “Basic Subscription Right”), provided that no fractional shares of Common Stock shall be issued and pursuant to the Rights Subscription Price multiplied by the aggregate number exercise of shares of Common Stock offered shall not exceed the aggregate offering amount described in the Registration Statementany Rights, (iii) each such Right shall be non-transferable, (iv) the rights offering shall remain open for at least sixteen (16) days, but no more than twenty (20) days or such longer period as required by Law or as reasonably determined by the Company (such period, as may be extended by the Company in its sole discretion, the “Subscription Period”), (v) each holder who fully exercises all Rights held by such holder shall be entitled to subscribe for additional shares of Common Stock that were not subscribed for under the Basic Subscription Right in an amount equal to up to an aggregate of 9.99% of the outstanding shares of Common Stock after giving effect to the consummation of the transactions contemplated by the Rights Offering and this Agreement (the “Oversubscription PrivilegeOver-Subscription Right”); providedprovided that, if the insufficient remaining number shares of unsubscribed shares of Common Stock are insufficient to satisfy all oversubscription requests pursuant to the Oversubscription Privilegeavailable, all over-subscription requests shall be honored on a pro rata basis in among Rights holders who exercise the manner to be set forth in Over-Subscription Right (based on the ProspectusBasic Subscription Rights exercised), (vi) no Person (other than the Investors and their Affiliates) may exercise the Rights to the extent the exercise thereof would cause such Person to acquire Beneficial Ownership in excess of 9.814.99% of the outstanding Capital Common Stock after giving effect to the consummation of the Rights Offering and the Backstop Commitment, and (vii) any Person (other than the Investors and their Affiliates) who is, prior to the consummation of the Rights Offering, the Beneficial Owner of in excess of 9.814.99% of the outstanding Capital Common Stock shall be entitled to exercise the Rights (including any overOver-subscription rightSubscription Right) only to the extent necessary to maintain the same its proportionate Beneficial Ownership percentage that such Person had interest in the Capital Common Stock of the Company prior to the consummation of the Rights Offering and the other transactions contemplated hereby (collectively, such rights offering, the “Rights Offering”). (ge) The Prior to the expiration or termination of this Agreement in accordance with Article VI, the Company shall not amend any of the terms of the Rights Offering described in Section 2.1(f)(i) through (v) 1.1(d), terminate the Rights Offering or waive any material conditions to the closing of the Rights Offering Offering, without the prior written consent of the Investors, which consent may be withheld by unless the Investors in their sole discretionfull Board (and not a committee of the Board) approves such amendment, termination or waiver. Subject to the terms and conditions of the Rights Offering, the Company shall effect the closing of the Rights Offering as promptly as practicable following the end of the Subscription Period. The closing of the Rights Offering shall occur at the time, for the Rights Subscription Price and in the manner and on the terms of the Rights Offering set forth in Section 2.1(f1.1(d), as shall be set forth in the Prospectus. Notwithstanding the foregoing, the Company may extend the Subscription Period in its sole and absolute discretion for a period of not greater than ten (10) Business Days. (hf) The Company shall pay all of its expenses associated with the Registration Statement, the Prospectus, the Rights Offering and the other transactions contemplated hereby, including filing and printing fees, fees and expenses of any subscription and information agents, fees and expenses of its counsel and accounting fees and expenses and costs associated with clearing the Common Stock offered thereby for sale under applicable state securities Laws.