Common use of Valid Issuance of Preferred and Common Stock Clause in Contracts

Valid Issuance of Preferred and Common Stock. The Class A Common Stock that is being purchased by the Investor hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under the Transaction Documents and under applicable state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock will be duly and validly reserved for issuance and, upon issuance, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with.

Valid Issuance of Preferred and Common Stock. The Class A Common Series E Preferred Stock that is being purchased by the Investor hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under the Transaction Documents and under applicable state and federal securities laws. The Class A Common Stock issuable upon conversion of the Series E Preferred Stock purchased under this Agreement has been duly and validly reserved for issuance and, upon issuance in accordance with the terms of the Restated Certificate, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under the Transaction Documents and under applicable state and federal securities laws. The Series E Preferred Stock that is being purchased by the Investor hereunder will hereunder, and the Common Stock issuable upon conversion of such Series E Preferred Stock is not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the The outstanding Series A, Series B, Series C, Series D, D and Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the The Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, D and Series D-1 and Series E Preferred Stock will be has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Restated Certificate, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, D and Series D-1 and Series E Preferred Stock and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, D and Series D-1 Preferred Stock and Series E the Common Stock issuable upon conversion of such Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with.

Valid Issuance of Preferred and Common Stock. (a) The Class A Common Series E Preferred Stock that which is being purchased by the Investor Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement hereof, for the consideration expressed herein, will be duly and validly issued, fully paidpaid and nonassessable and, and nonassessablebased in part upon the representations of the Investors in this Agreement, and will be free of restrictions on transfer other than restrictions on transfer under the Transaction Documents issued in compliance with all applicable federal and under applicable state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock will be purchased under this Agreement has been duly and validly reserved for issuance and, upon issuanceissuance and in accordance with the terms of the Restated Articles, will be duly and validly issued, fully paid, paid and nonassessable and will be free issued in compliance with all applicable federal and state securities laws. (b) The outstanding shares of restrictions on transfer other than restrictions on transfer under the documents executed in connection with the sale of the Series AA Preferred Stock, Series BB Preferred Stock, Series C, Series D, Series D-1 and Series E C Preferred Stock and under applicable state Series D Preferred Stock and federal securities lawsCommon Stock of the Company have been duly and validly authorized, issued and delivered, and are validly outstanding, fully paid and nonassessable. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock and Class A Common Stock issuable upon conversion of such the outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock has been duly and validly reserved for issuance and, when issued in accordance with the Restated Articles, will not be subject to preemptive rights or rights duly and validly issued, fully paid and nonassessable. The outstanding shares of first refusal that Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock and Common Stock have not been waived or complied withissued in compliance with all applicable federal and state securities laws.

Valid Issuance of Preferred and Common Stock. The Class Series A Common Preferred Stock that is being purchased by the Investor Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this Agreement, the Transaction Documents Investors' Rights Agreement, the Right of First Refusal and Co-Sale-Agreement, the Voting Trust Agreement and under applicable state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E A Preferred Stock will be and upon the exercise of the Warrants purchased under this Agreement has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Restated Articles, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under this Agreement, Investors' Rights Agreement, the documents executed in connection with Right of First Refusal and Co-Sale Agreement, the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock Voting Trust Agreement and under applicable state and federal securities laws. The outstanding Series AWarrants that are being purchased hereunder, Series Bwhen issued, Series Csold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, Series Dwill be duly and validly issued, Series D-1 fully paid, and Series E Preferred Stock is not subject to preemptive rights or rights nonassessable, and will be free of first refusal that have not been waived or complied with andrestrictions on transfer other than restrictions on transfer under this Agreement, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock Right of First Refusal and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject to preemptive rights or rights of first refusal that have not been waived or complied withCo-Sale-Agreement, the Voting Trust Agreement and under applicable state and federal securities laws.

Valid Issuance of Preferred and Common Stock. The Class A Common Series E Preferred -------------------------------------------- Stock that is being purchased by the Investor Stock Purchasers hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the Transaction Documents Investors' Rights Agreement and under applicable state and federal securities laws. The Class A Common Stock Notes that is are being purchased by the Investor hereunder Note Purchasers hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paidpaid and nonassessable, and is nonassessablewill be free of restrictions on transfer other than restrictions on transfer under this Agreement, the Notes, the Investors' Rights Agreement and applicable state and federal securities laws. Upon The Series E Preferred Stock that may be issued to the filing Note Purchasers upon conversion of the Restated CertificateNotes, when issued and delivered in accordance with the terms thereof, will be duly and validly issued, fully paid and nonassessable, and free of restrictions on transfer other than restrictions on transfer under this Agreement, the Investors' Rights Agreement and applicable state and federal securities laws. The Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock will be purchased under this Agreement has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Restated Certificate, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock Investors' Rights Agreement and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with.

Valid Issuance of Preferred and Common Stock. The Class A Common Stock that is being purchased by the Investor hereunderMerger -------------------------------------------- Consideration, when issued, sold issued and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, paid and nonassessable, and will be free of liens, charges, encumbrances and restrictions on transfer other than restrictions on transfer under this Agreement and the Transaction Documents Amended Rights Agreement and applicable state and federal securities laws. The eGain Series C Preferred Stock issuable upon exercise of the Preferred Warrants and eGain Common Stock issuable upon conversion of the eGain Series C Preferred Stock and upon the exercise of the Common Options and Common Warrants has been duly and validly reserved for issuance and, upon issuance in accordance with the terms of the eGain's Restated Certificate of Incorporation in the form attached hereto as Exhibit H (the "Restated Certificate"), will be duly and validly issued, fully paid and nonassessable, and will be free of liens, charges, encumbrances and restrictions on transfer other than restrictions on transfer under this Agreement, the Amended Rights Agreement and under applicable state and federal securities laws. The Class A Except as set forth in the Amended Rights Agreement, the Merger Consideration, the eGain Series C Preferred Stock issuable upon exercise of the Preferred Warrants and the eGain Common Stock that is being purchased by issuable on conversion of eGain Series C Preferred Stock and upon the Investor hereunder will exercise of the Common Options and Common Warrants are not be subject to any preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock will be duly and validly reserved for issuance and, upon issuance, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject to preemptive rights or rights of first refusal that have not been waived or complied withsimilar right.

Valid Issuance of Preferred and Common Stock. The Class A Common Series C Preferred Stock that is being purchased by the Investor hereunderInvestors hereunder and the Series C Warrants, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the Transaction Documents Investors' Rights Agreement (and with respect to the Series C Warrants, pursuant to the terms thereof) and under applicable state and federal securities laws. The Class A Common Series C-1 Preferred Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing issuable upon conversion of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E C Preferred Stock was duly purchased under this Agreement and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding such Series A, Series B, Series C, Series D, Series D-1 and Series E C Preferred Stock will be and the Series C-1 Preferred Stock have been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Restated Articles, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock Investors' Rights Agreement and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E C Preferred Stock that is being purchased hereunder, the Series C Warrants, the Series C Preferred Stock issuable upon exercise thereof, the Series C-1 Preferred Stock issuable upon conversion of the Series C Preferred Stock and the Common Stock issuable upon conversion of the Series C Preferred Stock or Series C-1 Preferred Stock are not subject to preemptive any pre-emptive rights or rights of first refusal that which have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject to preemptive rights or rights of first refusal that have not been waived or complied withpreviously waived.

Valid Issuance of Preferred and Common Stock. (a) The Class A Common Series C Preferred Stock that which is being purchased by the Investor Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement hereof for the consideration expressed herein, will be duly and validly issued, fully paidpaid and nonassessable and, and nonassessablebased in part upon the representations of the Investors in this Agreement, and will be issued in compliance with all applicable federal and state securities laws. The shares of Series C Preferred Stock are being issued free of restrictions on transfer other than restrictions on transfer under set forth in this Agreement, the Transaction Documents Investors' Rights Agreement or any Ancillary Agreement and under applicable other than pursuant to federal or state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E C Preferred Stock will be purchased under this Agreement has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Restated Articles of Incorporation, will shall be duly and validly issued, fully paidpaid and nonassessable, and nonassessable issued in compliance with all applicable securities laws, as then in effect, of the United States and each of the states whose securities laws govern the issuance of any of the Series C Preferred Stock hereunder. (b) The outstanding shares of Series A Preferred Stock, Series B Preferred Stock, and Common Stock are all duly and validly authorized and issued, fully paid and nonassessable, and were issued in compliance with all applicable federal and state securities laws. The Common Stock issuable upon conversion of the Series A Preferred Stock and Series B Preferred Stock will be issued free of restrictions on transfer other than restrictions on transfer under the documents executed set forth in connection with the sale of the Series Athis Agreement, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock Restriction Agreement or any Ancillary Agreement and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject other than pursuant to preemptive rights federal or rights of first refusal that have not been waived or complied withstate securities laws.

Valid Issuance of Preferred and Common Stock. The Class A Common Stock that is Shares and the Warrant being purchased by the Investor hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under the Transaction Documents this Agreement, such Warrant and under applicable state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights Except as set forth in Schedule 2.5 of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series Exhibit B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E D Convertible Preferred Stock will be and the Common Stock issuable upon exercise of the Warrant has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Certificate of Designations of Preferences and Rights of Series D Convertible Preferred Stock attached hereto as Exhibit C (the "Certificate of Designations") and the Amended and Restated Certificate of Incorporation (the "Certificate of Incorporation") or upon issuance in accordance with the terms of such Warrant, as the case may be, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under the documents executed in connection with the sale of the Series Athis Agreement, Series B, Series C, Series D, Series D-1 such Warrant and Series E Preferred Stock and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred So long as the number of shares of Common Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by Company outstanding on a fully-diluted, as-converted basis exceeds the requisite holders number of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the authorized Common Stock and Class A of the Company, at the 1999 Annual Meeting of Stockholders (which shall be held prior to June 30, 1999) the Company shall seek stockholder approval of an amendment to its Certificate of Incorporation to increase its authorized Common Stock issuable upon conversion so that the number of such Preferred authorized shares of Common Stock will not be subject thereafter exceed the number of shares outstanding on a fully-diluted, as-converted basis, and the Company shall use its reasonable best efforts to preemptive rights or rights of first refusal that have not been waived or complied withobtain such stockholder approval.

Valid Issuance of Preferred and Common Stock. (a) The Class A Common Series B Preferred Stock that which is being purchased by the Investor Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement hereof for the consideration expressed herein, will be duly and validly issued, fully paidpaid and nonassessable and, and nonassessablebased in part upon the representations of the Investors in this Agreement, and will be issued in compliance with all applicable federal and state securities laws. The shares of Series B Preferred Stock are being issued free of restrictions on transfer other than restrictions on transfer under set forth in this Agreement, the Transaction Documents Investors' Rights Agreement or any Ancillary Agreement and under applicable other than pursuant to federal or state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E B Preferred Stock will be purchased under this Agreement has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Restated Articles of Incorporation, will shall be duly and validly issued, fully paidpaid and nonassessable, and nonassessable issued in compliance with all applicable securities laws, as then in effect, of the United States and each of the states whose securities laws govern the issuance of any of the Series B Preferred Stock hereunder. (b) The outstanding shares of Series A Preferred Stock and Common Stock are all duly and validly authorized and issued, fully paid and nonassessable, and were issued in compliance with all applicable federal and state securities laws. The Common Stock issuable upon conversion of the Series A Preferred Stock will be issued free of restrictions on transfer other than restrictions on transfer under the documents executed set forth in connection with the sale of the Series Athis Agreement, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock or any Ancillary Agreement and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject other than pursuant to preemptive rights federal or rights of first refusal that have not been waived or complied withstate securities laws.

Valid Issuance of Preferred and Common Stock. The Class A Common Stock that is Preferred Shares being purchased by the Investor hereunder, when issued, sold sold, and delivered in accordance with the terms of this Agreement for the consideration expressed hereinin this Agreement, will be duly and validly issued, fully paid, and nonassessable, and will be free of any Liens or restrictions on transfer other than restrictions on transfer under this Agreement, the Transaction Documents Investor Rights Agreement and the Series A Certificate of Designations and under applicable state and federal securities lawsLaws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing Each of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing shares of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 Preferred Shares purchased under this Agreement and Series E Preferred Stock will be the PIK Shares has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Series A Certificate of Designations, will be duly and validly issued, fully paid, and nonassessable and will be free of any Liens or restrictions on transfer other than restrictions on transfer under the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock Investor Rights Agreement and under applicable state and federal securities lawsLaws. The outstanding Series Asale of the Preferred Shares is not, Series Band the issuance and the delivery of the PIK Shares will not be, Series Cand the subsequent conversion of the Preferred Shares and the PIK Shares into Common Stock will not be, Series D, Series D-1 and Series E Preferred Stock is not subject to any preemptive rights or rights, rights of first refusal that have not been waived offer or complied any anti-dilution provisions contained in the Company Charter Documents. The PIK Shares when delivered in accordance with andthe Series A Certificate of Designation will be duly and validly issued, upon fully paid, and nonassessable and will be free of any Lines or restrictions on transfer other than restrictions on transfer under the execution and delivery of the Investors' Investor Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock under applicable state and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject to preemptive rights or rights of first refusal that have not been waived or complied withfederal securities Laws.

Valid Issuance of Preferred and Common Stock. The Class Series A Common Stock that is being -------------------------------------------- Preferred which may be purchased by the Investor hereunder, when issued, sold and delivered in accordance with the terms of this Agreement hereof for the consideration expressed herein, will be duly and validly issued, fully paidpaid and nonassessable and, based in part upon the representations of the Investor in this Agreement, will be issued in compliance with all applicable securities laws as presently in effect, of the United States and nonassessableeach of the states whose securities laws govern the issuance of any of the Series A Preferred hereunder, and will be free of restrictions on transfer other than restrictions on transfer under the Transaction Documents this Agreement and under applicable state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E A Preferred Stock will be has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Amended Certificate of Designation, will shall be duly and validly issued, fully paidpaid and nonassessable, and, based in part upon the representations of the Investor in this Agreement, shall be issued in compliance with all applicable securities laws, as presently in effect, of the United States and nonassessable each of the states whose securities laws govern the issuance of any of the Series A Preferred (or the Common Stock issuable upon conversion thereof) and will be free of restrictions on transfer other than restrictions on transfer under the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock this Agreement and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the has reserved sufficient authorized but unissued Common Stock and Class A Common Stock issuable for issuance upon conversion of such Preferred Stock will not be subject to preemptive rights or rights of first refusal that have not been waived or complied withthe Series A Preferred.

Valid Issuance of Preferred and Common Stock. (a) The Class A Common Series D Preferred Stock that which is being purchased by the Investor Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement hereof for the consideration expressed herein, will be duly and validly issued, fully paidpaid and nonassessable, and nonassessablenone will be issued in violation of any preemptive or similar rights and, based in part upon the representations of the Investors in this Agreement, will be issued in compliance with all applicable securities laws as presently in effect, of the United States and each of the states whose securities laws govern the issuance of any of the Series D Preferred Stock hereunder, and will be free of restrictions on transfer other than restrictions on transfer under the Transaction Documents and under applicable state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E D Preferred Stock will be has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Restated Certificate of Incorporation, will shall be duly and validly issued, fully paidpaid and nonassessable, and, based in part upon the representations of the Investors in this Agreement, shall be issued in compliance with all applicable securities laws, as presently in effect, of the United States and nonassessable each of the states whose securities laws govern the issuance of any of the Series D Preferred Stock (or the Class A Common Stock issuable upon conversion thereof) and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock Stockholders Agreement and under applicable state and federal securities laws. The Company has reserved sufficient authorized but unissued Class A Common Stock for issuance upon conversion of the Series D Preferred Stock. (b) The outstanding shares of Series AA Preferred Stock, Series BB Preferred Stock, Series CC Preferred Stock, Series DC-1 Preferred Stock, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Class A Common Stock and Class A B (Non-Voting) Common Stock issuable upon conversion are all duly and validly authorized and issued, fully paid and nonassessable, and none were issued in violation of the preemptive or similar rights (whether statutory or contractual) of any person. None of such Preferred Stock will not be subject to preemptive rights shares were issued, offered or rights sold by the Company in violation of first refusal that have not been waived any applicable federal or complied withstate securities laws or the rules and regulations thereunder.

Valid Issuance of Preferred and Common Stock. The Class A Common Stock that is being purchased by the Investor hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under the Transaction Documents and under applicable state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock will be duly and validly reserved for issuance and, upon issuance, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' ’ Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "“Prior Agreement" ” (as such term is defined in the Investors' ’ Rights Agreement), the Common Stock and Class A Common Stock issuable upon conversion of such Preferred Stock will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with.

Valid Issuance of Preferred and Common Stock. The Class Series A Common Preferred Stock and Series B Preferred Stock that is being purchased by the Investor Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, paid and nonassessable, nonassessable and will be free of restrictions on transfer transfer, other than restrictions on transfer under this Agreement and the Transaction Documents Investor Rights Agreement and under applicable state and federal securities laws. The Class Series A Common Preferred Stock that is being purchased by Kleixxx xxxer the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated CertificateTeleverde Purchase Agreement, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly when issued, fully paid, sold and is nonassessable. Upon delivered in accordance with the filing of terms thereof for the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock will be duly and validly reserved for issuance and, upon issuance, consideration expressed therein will be duly and validly issued, fully paid, paid and nonassessable and and, to the knowledge of the Company, will be free of restrictions on transfer transfer, other than restrictions on transfer under the documents executed in connection with Televerde Purchase Agreement and the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock Investor Rights Agreement and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock and Class A Common Stock issuable upon conversion of such the Series A Preferred Stock and the Series B Preferred Stock purchased under this Agreement has been duly and validly reserved for issuance and, upon issuance in accordance with the terms of the Certificate, will not be subject duly and validly issued, fully paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer under this Agreement and the Investor Rights Agreement and under applicable state and federal securities laws. The Common Stock issuable upon conversion of the Series A Preferred Stock purchased under the Televerde Agreement has been duly and validly reserved for issuance and, upon issuance in accordance with the terms of the Certificate, will be duly and validly issued, fully paid and nonassessable and, to preemptive rights or rights the knowledge of first refusal that have not been waived or complied withthe Company, will be free of restrictions on transfer, other than restrictions on transfer under the Televerde Purchase Agreement and the Investor Rights Agreement and under applicable state and federal securities laws.

Valid Issuance of Preferred and Common Stock. The Class Series A Common Preferred Stock that which is being purchased by the Investor Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement hereof for the consideration expressed herein, will be duly and validly issued, fully paid, paid and nonassessable, nonassessable and will be free of any liens or encumbrances or restrictions on transfer other than restrictions on transfer under this Agreement, the Transaction Documents Investors' Rights Agreement and under applicable state and federal securities laws and, based in part upon the representations of the Investors in this Agreement, will be issued in compliance with all applicable federal and state securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E A Preferred Stock will be purchased under this Agreement has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Restated Articles, will shall be duly and validly issued, fully paid, paid and nonassessable and will be free of any liens or encumbrances or restrictions on transfer other than restrictions on transfer under this Agreement, the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 Investors' Rights Agreement and Series E Preferred Stock and under applicable state and federal securities laws, and issued in compliance with all applicable securities laws, as presently in effect, of the United States and each of the states whose securities laws govern the issuance of any of the Series A Preferred Stock hereunder. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E A Preferred Stock which is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement being purchased by the requisite holders of Company capital stock necessary to amend Investors hereunder and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the Common Stock and Class A Common Stock issuable upon conversion of such Preferred Stock thereof are not and will not be subject to any preemptive rights or rights, rights of first refusal refusal, rights of first offer or other similar rights that have not been properly waived or complied with.

Valid Issuance of Preferred and Common Stock. (a) The Class Series A Common Preferred Stock that which is being purchased by the Investor hereunder, when issued, sold and delivered in accordance with the terms of this Agreement hereof for the consideration expressed herein, will be duly and validly issued, fully paidpaid and nonassessable and, based in part upon the representations of the Investor in this Agreement, will be issued in compliance with all applicable securities laws as presently in effect, of the United States and nonassessableeach of the states whose securities laws govern the issuance of any of the Series A Preferred Stock hereunder, and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the Transaction Documents Investor Rights Agreement and under applicable state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights or rights of first refusal that have not been waived or complied with. Prior to the filing of the Restated Certificate, the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock was duly and validly issued, fully paid, and is nonassessable. Upon the filing of the Restated Certificate, the Common Stock issuable upon conversion of the outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E A Preferred Stock will be has been duly and validly reserved for issuance and, upon issuanceissuance in accordance with the terms of the Restated Certificate of Incorporation, will shall be duly and validly issued, fully paidpaid and nonassessable, and, based in part upon the representations of the Investor in this Agreement, shall be issued in compliance with all applicable securities laws, as presently in effect, of the United States and nonassessable each of the states whose securities laws govern the issuance of any of the Series A Preferred Stock (or the Common Stock issuable upon conversion thereof) and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the documents executed in connection with the sale of the Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock Investor Rights Agreement and under applicable state and federal securities laws. The outstanding Series A, Series B, Series C, Series D, Series D-1 and Series E Preferred Stock is not subject to preemptive rights or rights of first refusal that have not been waived or complied with and, upon the execution and delivery of the Investors' Rights Agreement by the requisite holders of Company capital stock necessary to amend and restate the "Prior Agreement" (as such term is defined in the Investors' Rights Agreement), the has reserved sufficient authorized but unissued Common Stock and Class A Common Stock issuable for issuance upon conversion of such the Series A Preferred Stock. (b) The outstanding shares of Series A Preferred Stock will not be subject to and Common Stock are all duly and validly authorized and issued, fully paid and nonassessable, and none were issued in violation of the preemptive or similar rights (whether statutory or rights contractual) of first refusal that have not been waived any person. None of such shares were issued, offered or complied withsold by the Company in violation of any applicable federal or state securities laws or the rules and regulations thereunder.