Common use of Capitalization; Subsidiaries Clause in Contracts

Capitalization; Subsidiaries. (a) The “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth all issued and outstanding Capital Stock of each Loan Party (other than the Borrower), including the number of authorized, issued and outstanding shares or other units of Capital Stock of each Loan Party (other than the Borrower) and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) have been duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is free and clear of all Liens (except for the benefit of the Secured Parties and Permitted Liens). Except as set forth on Schedule 7.09, no Loan Party (other than the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactions. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Stock. (b) As of the Closing Date, none of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Date.

Capitalization; Subsidiaries. (a) The “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth all issued and outstanding Capital Stock of each Loan Party (other than the Borrower), including the number of authorized, issued and outstanding shares or other units of Capital Stock of each Loan Party (other than the Borrower) and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) have been duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is free and clear of all Liens (except for the benefit of the Secured Parties and Permitted Liens). Except as set forth on Schedule 7.09, no Loan Party (other than the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactionshereunder. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Stock. Except for the agreements listed on Schedule 7.09, there are no agreements among the Borrower’s stockholders with respect to the voting or transfer of the Borrower’s Capital Stock. (b) As of the Closing Date, none of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Date.

Capitalization; Subsidiaries. (a) The “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth all As of the close of business on July 29, 2019, the authorized capital stock of Parent consists of (i) 100,000,000 shares of Parent Common Stock, 37,356,061 of which were issued and outstanding Capital Stock and 194,859 of each Loan Party which were held by Parent as treasury stock, and (other than ii) 5,000,000 shares of preferred stock of Parent, par value $0.01 per share, none of which were outstanding. As of the Borrower)close of business on July 29, including 2019, the number authorized capital stock of Acquisition Sub consists of (i) 100 shares of common stock, $0.001 par value per share, 100 of which were issued and outstanding. Acquisition Sub does not have any Subsidiaries and has no shares of preferred stock authorized, issued and outstanding shares or other units of Capital Stock of each Loan Party (other than the Borrower) and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) have been duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is free and clear of all Liens (except for the benefit of the Secured Parties and Permitted Liens). Except as set forth on Schedule 7.09, no Loan Party (other than the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactions. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Stockoutstanding. (b) As of the Closing Datedate of this Agreement, none there are no existing (i) options, warrants, calls, subscriptions or other rights, convertible securities, agreements or commitments of any character to which Parent or any of its Subsidiaries (including Acquisition Sub) is a party obligating Parent or any of its Subsidiaries (including Acquisition Sub) to issue, transfer or sell any shares of capital stock or other equity interest in Parent or any of its Subsidiaries (including Acquisition Sub) or securities convertible into or exchangeable for such shares or equity interests, (ii) contractual obligations of Parent or any of its Subsidiaries (including Acquisition Sub) to repurchase, redeem or otherwise acquire any capital stock of Parent or any of its Subsidiaries, (iii) appreciation rights, phantom equity or similar rights with respect to, or valued in whole or in part in reference to, Parent or any of its Subsidiaries (including Acquisition Sub) or (iv) voting trusts or similar agreements to which Parent is a party with respect to the voting of the Loan Parties has any Subsidiaries other than capital stock of Parent. (c) Each Subsidiary of Parent (including Acquisition Sub) on the Subsidiaries date of this Agreement is listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each Section 4.2(c) of the Loan Parties Parent Disclosure Letter. Except as set forth on Section 4.2(c) of the Parent Disclosure Letter, Parent owns, directly or indirectly, all of the issued and outstanding company, partnership or corporate (as applicable) ownership interests in each such Subsidiary as (including Acquisition Sub), free and clear of the Closing Dateall Liens except for Permitted Liens.

Capitalization; Subsidiaries. (a) The “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth all As of the close of business on December 18, 2020, the authorized capital stock of Parent consists of (i) 100,000,000 shares of Parent Common Stock, 75,164,230 of which were issued and outstanding Capital Stock and 5,000,000 of each Loan Party which were held by Parent as treasury stock, and (other than the Borrower)ii) 5,000,000 shares of preferred stock of Parent, including the number par value $0.01 per share, zero shares of which were outstanding. Acquisition Sub does not have any Subsidiaries and has no shares of preferred stock authorized, issued or outstanding. (b) All of the issued and outstanding shares or other units of Capital Parent Common Stock of each Loan Party (other than the Borrower) and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) have been duly authorized, authorized and validly issued, issued and are fully paid paid, nonassessable and non-assessable free of preemptive rights. All of the Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal securities Laws or an appropriate exemption therefrom and have not been issued in violation accordance with the Investment Company Act. (c) As of the date hereof, there are no existing (i) options, warrants, calls, subscriptions or other rights, convertible securities, agreements or commitments of any preemptive character to which Parent or any of its Subsidiaries (including Acquisition Sub) is a party obligating Parent or any of its Subsidiaries (including Acquisition Sub) to issue, transfer or sell any shares of capital stock or other equity interest in Parent or any of its Subsidiaries (including Acquisition Sub) or securities convertible into or exchangeable for such shares or equity interests, (ii) contractual obligations of Parent or any of its Subsidiaries (including Acquisition Sub) to repurchase, redeem or otherwise acquire any capital stock of Parent or any of its Subsidiaries or any securities representing the right to purchase or otherwise receive capital stock of Parent or any of its Subsidiaries, (iii) appreciation rights, phantom equity or similar rights created by applicable Lawwith respect to, or valued in whole or in part in reference to, Parent or any Loan Party’s of its Subsidiaries (other than the Borrowerincluding Acquisition Sub) Organization Documents or by any agreement (iv) voting trusts or similar agreements to which such Loan Party Parent is a party with respect to the voting of the capital stock of Parent. (d) Each Subsidiary of Parent (including Acquisition Sub) on the date hereof is listed on Section 4.2(d) of the Parent Disclosure Letter. Except as set forth on Section 4.2(d) of the Parent Disclosure Letter, Parent owns, directly or by which it is boundindirectly, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All all of the issued and outstanding Capital Stock of company, partnership or corporate (as applicable) ownership interests in each Loan Party such Subsidiary (other than the Borrower) is including Acquisition Sub), free and clear of all Liens (except for the benefit of the Secured Parties and Permitted Liens). Except as set forth on Schedule 7.09, no Loan Party (other than the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactions. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Stock. (b) As of the Closing Date, none of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Date.

Capitalization; Subsidiaries. (a) The “Capitalization Schedule 5.13 contains (except as noted therein) complete and Subsidiaries Schedule” attached hereto correct lists (i) of the Borrower’s Subsidiaries, showing, as Schedule 7.09 sets forth all issued and outstanding to each Subsidiary, the correct name thereof, the jurisdiction of its organization, the percentage of shares of each class of its Capital Stock or similar equity interests outstanding owned by the Borrower and each other Subsidiary and whether such Subsidiary is a Guarantor, (ii) of the Borrower’s Unrestricted Subsidiaries, showing, as to each Unrestricted Subsidiary, the correct name thereof, the jurisdiction of its organization, the percentage of shares of each Loan Party class of its Capital Stock or similar equity interests outstanding owned by the Borrower and each other Subsidiary, (iii) to the Borrower’s Knowledge, of the Borrower’s Affiliates, other than Subsidiaries, and (iv) of the Borrower), including ’s directors and executive officers. (b) All of the number of authorized, issued and outstanding shares or other units of Capital Stock or similar equity interests of each Loan Party (other than Subsidiary shown in Schedule 5.13 as being owned by the Borrower) Borrower and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) its Subsidiaries have been duly authorized, validly issued, are fully paid and non-assessable nonassessable and have not been issued in violation of any preemptive are owned by the Borrower or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is another Subsidiary free and clear of all Liens any Lien (except for the benefit of the Secured Parties and Permitted Liensas otherwise disclosed in Schedule 5.13). Except as set forth on Schedule 7.09. (c) No Subsidiary is a party to, no Loan Party or otherwise subject to any legal restriction or any Contractual Obligation (other than this Agreement, the BorrowerSenior Notes and customary limitations imposed by corporate law statutes) has restricting the ability of such Subsidiary to pay dividends out of profits or make any other similar distributions of profits to the Borrower or any of its Subsidiaries that owns outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any similar equity interests of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactions. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital StockSubsidiary. (b) As of the Closing Date, none of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Date.

Capitalization; Subsidiaries. (a) The “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth authorized capital stock of the Company consists of one thousand (1,000) shares of common stock, par value $0.01 per share, all of which are issued and outstanding Capital Stock and fully paid and nonassessable. All of the issued and outstanding shares of capital stock of the Company are, and at the Closing will be, owned beneficially and of record by Seller, free and clear of all Liens other than Liens under the Securities Act and applicable state securities Laws and Permitted Liens, other than for Liens pursuant to Credit Facility that shall be discharged at or prior to Closing. (b) Schedule 3.04(b) sets forth the name of each Loan Party (other than the Borrower)Company Subsidiary, including the number and class of all authorized, issued and outstanding shares or of capital stock and other units of Capital Stock equity interests of each Loan Party (Company Subsidiary and the owner(s) of record of such outstanding capital stock and other equity interests. All of the outstanding equity interests in each Company Subsidiary are owned beneficially and of record, directly by the Company or another Company Subsidiary wholly owned by the Company, free and clear of all Liens other than Liens under the Borrower) Securities Act and the holders of such Capital Stockapplicable state securities Laws and Permitted Liens, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than for Liens pursuant to the Borrower) have been Credit Facility that shall be discharged at or prior to Closing. All such equity interests are duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of subject to any contractual or statutory preemptive or similar rights created by applicable Law, or any Loan Party’s agreements to issue any preemptive rights. (other than the Borrowerc) Organization Documents or by any agreement to which such Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is free and clear of all Liens (except Except for the benefit of the Secured Parties and Permitted Lienscontemplated 2013 Equity Incentive Plan (as to be adopted in accordance herewith). Except as set forth on Schedule 7.09, there are (x) no Loan Party (other than the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock capital stock or other equity interests or voting securities of any rights or options to subscribe for or to purchase its Capital Stock Target Company, (y) no securities of any Target Company convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09shares of capital stock, other equity interests or voting securities of any Target Company and (z) no Loan Party is subject outstanding or authorized options, warrants, purchase rights, subscription rights, rights of first refusal, preemptive rights, conversion rights, exchange rights or other contracts or commitments that could require any Target Company to any obligation (contingent issue, sell, or otherwise) otherwise cause to repurchase or acquire or retire become outstanding any of its Capital Stockcapital stock or equity interests. No Target Company has outstanding any bonds, debentures, notes or other than obligations the holders of which have the right to vote (or convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matter. There are no outstanding or authorized stock repurchases otherwise permitted hereunder and appreciation, phantom stock, profit participation or similar rights with respect to any Target Company or any repurchase, redemption or other than obligation to acquire for value any such obligations set forth in the Certificate shares of Amendment filed by the Borrower in connection any class of capital stock or equity interests of any Target Company. No employee of any Target Company holds any capital stock, membership interests, options, phantom stock, profit participation, equity interests or similar rights with the PIPE Transactions. None of the Loan Parties has violated any applicable federal respect to Guarantor or state securities Laws in connection with the offer, sale or issuance of any of its Capital StockAffiliates. (b) As of the Closing Date, none of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Date.

Capitalization; Subsidiaries. (a) The “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth all issued and outstanding Capital Stock of each Loan Party (other than the Borrower)Party, including the number of authorized, issued and outstanding shares or other units of Capital Stock of each Loan Party (other than the Borrower) and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) have been duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such any Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is free and clear of all Liens (except for the benefit of the Secured Parties and Permitted LiensLiens permitted under Section 9.02(b)). Except as set forth on Schedule 7.09, no No Loan Party (other than the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no No Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactionshereunder. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Stock, and, to the knowledge of any Loan Party, the issuance of the Notes hereunder does not require registration under the Securities Act or any applicable state securities Laws. Except for the agreements listed on Schedule 7.09, there are no agreements among Holdings’ stockholders with respect to the voting or transfer of Holdings’ Capital Stock. (b) As of the Closing Date, none None of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing DateSubsidiary.

Capitalization; Subsidiaries. (a) The “Capitalization and Capitalization; Subsidiaries Schedule” attached hereto as Schedule 7.09 5.01 sets forth forth, as of the Closing Date all issued and outstanding Capital Stock Equity Interests of each Loan Party (other than the Borrower)Borrower and its Subsidiaries, including the number of authorized, issued and outstanding shares or other units of Capital Stock Equity Interests of each Loan Party (other than the Borrower) such Person and the holders of such Capital StockEquity Interests, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock each Subsidiary of each Loan Party (other than the Borrower) have Borrower has been duly authorized, validly issued, are is fully paid and non-assessable and have has not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such any Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock Equity Interests of each Loan Party (other than Subsidiary of the Borrower) Borrower is free and clear of all Liens (except for the benefit of the Secured Parties and non-consensual Permitted Liens). Except as set forth on Schedule 7.095.01, as of the Closing Date, no Loan Party (other than the Borrower) has outstanding any Capital Stock Equity Interests convertible or exchangeable for any shares of its Capital Stock Equity Interests or any rights rights, warrants or options to subscribe for or to purchase its Capital Stock Equity Interests convertible into or exchangeable for its Capital StockEquity Interests. Except as set forth on Schedule 7.095.01, as of the Closing Date, no Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactionshereunder. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Stock. (b) As of the Closing Date, none of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.095.01, as of the Closing Date. Schedule 7.09 5.01, as of the Closing Date, describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing DateSubsidiary.

Capitalization; Subsidiaries. (a) The “Capitalization authorized capital stock of SMM consists of as of the Execution Date and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth the Closing, 50,000,000 shares of SMM Common Stock, of which 4,475,775 shares of common stock are issued and outstanding. SMM owns all of the issued and outstanding Capital Stock stock of each Loan Party (other than SMM Subsidiary. As of the Borrower)Closing and except as described in SCHEDULE 6.6, including all of the number of authorized, issued and outstanding shares or other units of SMM Capital Stock of each Loan Party (other than the Borrower) and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) have been duly authorized, authorized and validly issued, are fully paid and non-assessable and have assessable, are free of Encumbrances, are not been issued in violation subject to preemptive rights or rights of any preemptive or similar rights created by applicable Law, any Loan Party’s first refusal (other than rights in favor of SMM) created by statute, the Borrower) Organization Documents articles of incorporation of SMM or by any agreement to which such Loan Party SMM is a party or by which it is bound, and have been offered, issued and sold by SMM in compliance with all applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is free and clear of all Liens (except for the benefit of the Secured Parties and Permitted Liens). Except as set forth on in EXHIBIT B and Schedule 7.096.6, (i) no Loan Party subscription, warrant, option, convertible security or other right (other than the Borrowercontingent or otherwise) has outstanding any Capital Stock convertible to purchase or exchangeable for acquire from SMM any shares of its Capital SMM Common Stock is authorized or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09outstanding, (ii) SMM has no Loan Party is subject to any obligation (contingent or otherwise) to repurchase issue any subscription, warrant, option, convertible security or other such right or security or to issue or distribute to holders of any shares of SMM Common any evidence of indebtedness or assets of SMM, and (iii) SMM has no obligation or right (contingent or otherwise) to purchase, redeem, or otherwise acquire any shares of SMM Common Stock or retire any interest therein or to pay any dividend or any distribution in respect thereof. EXHIBIT A sets forth the name of its Capital each holder of SMM Common Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection together with the PIPE Transactions. None total number of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance shares of any of its Capital StockSMM Common Stock held by each such stockholder. (b) As of Except for SMM Subsidiary, SMM has no (and prior to the Closing Datewill have no) Subsidiaries and does not (and prior to the Closing, none of the Loan Parties has will not) otherwise hold any Subsidiaries equity, membership, partnership, joint venture or other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Dateany entity.

Capitalization; Subsidiaries. (a) The Holdings’ authorized capital stock consists solely of 1,000 shares of common stock, par value $0.01 per share (the “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth Holdings Common Stock”), all of which shares of Holdings Common Stock are issued and outstanding. All outstanding Capital shares of Holdings Common Stock are validly issued, fully paid and nonassessable. Seller owns, free and clear of each Loan Party any Liens (other than Liens which shall not survive the BorrowerClosing (but subject to the filing of UCC-3 termination statements for Liens described in clause (D) of the definition of Permitted Liens)), including all of the number of authorized, issued and outstanding shares or other units of Capital Stock of each Loan Party (other than the Borrower) and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) have been duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is free and clear of all Liens (except for the benefit of the Secured Parties and Permitted Liens). Except as set forth on Schedule 7.09, no Loan Party (other than the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactions. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Holdings Common Stock. (b) As Section 3.02(b) of the Closing DateDisclosure Schedule contains a true and complete list, none of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Datedate hereof, of each Subsidiary of Holdings. All outstanding equity interests of each such Subsidiary are validly issued, fully paid and nonassessable, except as set forth on Section 3.02(b) of the Disclosure Schedule. Holdings owns, free and clear of any Liens (other than Liens which shall not survive the Closing), all of the issued and outstanding equity interests of its Subsidiaries. (c) Except as set forth above, there are no outstanding subscriptions, options, rights, warrants or other commitments entitling any person to purchase or otherwise subscribe for or acquire any shares of capital stock or other equity or voting interests of any Company Party or any security convertible into or exchangeable for shares of capital stock or other equity or voting interests of any Company Party, nor is there presently outstanding any security convertible into or exchangeable for shares of capital stock or other equity or voting interests of any Company Party, nor has any Company Party entered into any agreement with respect to any of the foregoing. No Company Party has any obligation to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity or voting interests in, any Company Party. There are no irrevocable proxies and no voting agreements to which any Company Party is a party with respect to any shares of the capital stock or other equity or voting securities of any Company Party.

Capitalization; Subsidiaries. (a) The “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth all issued and outstanding Capital Stock of each Loan Party (other than the Borrower), including the number of authorized, issued and outstanding shares or other units of Capital Stock of each Loan Party (other than the Borrower) and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) have been duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is free and clear of all Liens (except for the benefit of the Secured Parties and Permitted Liens). Except as set forth on Schedule 7.09, no Loan Party (other than the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactions. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Stock. (b) . As of the Closing Date, none of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Date.

Capitalization; Subsidiaries. (ai) The “Capitalization On the Effective Date, after giving effect to the transactions contemplated hereby to occur on the Effective Date, the authorized Capital Stock of the Parent, OTG and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth all the Borrower, and the issued and outstanding Capital Stock of each Loan Party (other than the BorrowerParent, OTG and the Borrower are as set forth on Schedule 6.01(e), including . All of the number of authorized, issued and outstanding shares or other units of Capital Stock of each Loan Party (the Parent, OTG and the Borrower have been validly issued and are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights except as set forth in the Securityholders Agreements. As of the Effective Date, other than the Borrower) and the holders of such Capital StockBorrower Warrants, all on and as there are no outstanding debt or equity securities of the Closing Date. Each Parent, OTG, the Borrower or any of its Subsidiaries and no outstanding share obligations of the Parent, OTG, the Borrower or unit any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Parent, OTG or the Borrower, or other obligations of the Parent, OTG or the Borrower to issue, directly or indirectly, any shares of Capital Stock of each Loan Party (other than the Parent, OTG or the Borrower. (ii) have been duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the BorrowerSchedule 6.01(e) Organization Documents or by any agreement to which such Loan Party is a party or by which it is boundcomplete and correct description of the name, jurisdiction of incorporation and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and ownership of the outstanding Capital Stock of each Loan Party (Subsidiary of the Borrower in existence on the Effective Date. The Borrower is the only Subsidiary of the Parent, and OTG has no Subsidiaries. All of the issued and outstanding shares of Capital Stock of such Subsidiaries have been validly issued and are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other than similar rights except as set forth in the Borrower) JV Agreements. Except as indicated on such Schedule, all such Capital Stock is owned by the Borrower or one or more of its wholly-owned Subsidiaries, free and clear of all Liens (except for the benefit Liens. There are no outstanding debt or equity securities of such Subsidiaries of the Secured Parties Borrower and Permitted Liens). Except as set forth on Schedule 7.09, no Loan Party (other than outstanding obligations of such Subsidiaries of the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock Borrower convertible into or exchangeable for, or warrants, options or other rights for its the purchase or acquisition from such Subsidiaries, or other obligations of any Subsidiary to issue, directly or indirectly, any shares of Capital Stock. Except as set forth on Schedule 7.09, no Loan Party is subject to Stock of any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactions. None Subsidiary of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital StockBorrower. (b) As of the Closing Date, none of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Date.

Capitalization; Subsidiaries. (a) The “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth all issued and outstanding Capital Stock of each Loan Party (other than the Borrower)Party, including the number of authorized, issued and outstanding shares or other units of Capital Stock of each Loan Party (other than the Borrower) and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party (other than the Borrower) have been duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such any Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party (other than the Borrower) is free and clear of all Liens (except for the benefit of the Secured Parties and Permitted LiensParties). Except as set forth on Schedule 7.09, no No Loan Party (other than the Borrower) has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no No Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate of Amendment filed by the Borrower in connection with the PIPE Transactionshereunder. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Stock, and, to the knowledge of any Loan Party, the issuance of the Notes hereunder does not require registration under the Securities Act or any applicable state securities Laws. Except for the agreements listed on Schedule 7.09, there are no agreements among the Borrower stockholders with respect to the voting or transfer of the Borrower’s Capital Stock. (b) As of the Closing Date, none None of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing DateSubsidiary.

Capitalization; Subsidiaries. (a) The “Capitalization Section 3.5(a) of the Disclosure Schedule accurately and Subsidiaries Schedule” attached hereto as Schedule 7.09 completely sets forth all issued and outstanding Capital Stock of each Loan Party (other than the Borrower), including the number of authorized, issued and outstanding shares or other units Equity Interests of Capital Stock of each Loan Party (other than the Borrower) Seller Parent and the holders of such Capital StockSeller, all on and in each case, as of immediately prior to the Closing Date(and excluding issuance of the Purchased Warrants and the issuance of Series D-1 Preferred Warrants to Horizon, in each case, in connection with the Closing). Each Except for the Equity Interests set forth on Section 3.5(a) of the Disclosure Schedules, there are no outstanding share shares or unit other Equity Interests of Capital Stock the Seller Parent and the Seller. All of each Loan Party (other than the Borrower) have been issued and outstanding Equity Interests of the Seller Parent and the Seller were duly authorized, validly issued, issued and are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s (other than the Borrower) Organization Documents or by any agreement to which such Loan Party is a party or by which it is boundassessable, and have been issued in compliance with applicable federal all Applicable Laws and state securities any preemptive rights, rights of first refusal or “blue sky” Laws. All issued and outstanding Capital Stock similar rights of each Loan Party (other than the Borrower) is free and clear of all Liens (except for the benefit of the Secured Parties and Permitted Liens)any Person. Except as set forth on Schedule 7.09Section 3.5(a) of the Disclosure Schedule, there are no Loan outstanding agreements obligating either Seller Party (other than the Borrower) has to repurchase, redeem or otherwise acquire, or pay any dividends in respect of, any outstanding any Capital Stock convertible or exchangeable for any shares Equity Interests of its Capital Stock either Seller Party, or any rights agreements between the Seller Parent’s or options the Seller’s equityholders (or any two or more of them) with respect to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. Except as set forth on Schedule 7.09, no Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any the voting of its Capital Stock, other than stock repurchases otherwise permitted hereunder and other than any such obligations set forth in the Certificate equity securities of Amendment filed by the Borrower in connection with the PIPE Transactionseither Seller Party. None of the Loan Parties has violated any applicable federal Seller Parent’s or state securities Laws the Seller’s outstanding Equity Interests are entitled to acceleration or vesting (or lapse of a repurchase right) or other changes in connection with the offer, sale vesting provisions or other terms of the agreements providing for the issuance of such Equity Interests upon the occurrence of any event or combination of its Capital Stockevents. The exercise price of any issued and outstanding options previously awarded by Seller Parent has never been adjusted or amended, whether through amendment, cancellation, replacement grant, repricing or any other means. (b) As of Except for the Closing DateSeller, none of the Loan Parties has (i) Seller Parent does not have any Subsidiaries and (ii) the Seller Parties do not own any Equity Interests, directly or indirectly, in any other than the Subsidiaries listed on Schedule 7.09Person. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary as of the Closing Date.DB1/ 152823773.22