Common use of Capitalization of the Company Clause in Contracts

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 0.0001 per share, of which 47,898,271 Shares 21,165,145 shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 2,000,000 shares of preferred stock, par value $0.001 0.0001 per share, none 500,000 shares of which have been designated as Series A Preferred Stock, 333,333 of which were issued or are and outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 1,086,712 Common Shares were issued and outstanding under the Company Stock Option Plans as reserved for issuance pursuant to restricted stock awards and remain subject to vesting restrictionsawards, (ii) 2,869,061 2,435,825 Common Shares were subject to outstanding Options, and (iii) 4,056,112 Common Shares were reserved for issuance pursuant to the exercise of outstanding Warrants, and (iv) no Common Shares were held by the Company in its treasury. Except for as set forth in Schedule 3.4 of the foregoingCompany Disclosure Schedule, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All Except as set forth on Schedule 3.4 of the Company Disclosure Schedule, all issued and outstanding Common Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there . There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except as set forth on Schedule 3.4 of the Company Disclosure Schedule and except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholdersshareholders, or (ii) to the Company’s actual knowledge, and except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders shareholders or between any of the Company’s stockholders shareholders and any third party. The Stock Option Plans and the agreements executed evidencing options granted thereunder permit do not prohibit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted SharesOptions, the Company’s stockholdersshareholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7.

Capitalization of the Company. The As of the approximate date hereof, the authorized capital stock of the Company consists solely of of: (ai) 100,000,000 250,000,000 shares of common stockCommon Stock, $0.001 par value $0.001 per share, of which 47,898,271 Shares were approximately 100,000,000 shares are issued and outstanding, of which 51,000,000 will be cancelled and 3,500,000 will be issued under this agreement and a further 7,500,000 under the second acquisition for a revised total of 60,000,000 shares to be issued and outstanding. Except as disclosed in the SEC Documents or in the Schedules, no shares of Common Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as disclosed in the SEC Documents no shares are reserved for issuance pursuant to the Company’s stock option plans, no shares are reserved for issuance pursuant to securities. All of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the investors of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. Except as disclosed in SEC documents, as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the effective date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, subscriptionsrights of first refusal, convertible agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or other rights, rights convertible into or other agreements obligating the Company to issue, transfer or sell exchangeable for any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to repurchase, redeem or otherwise acquire any issue additional shares of capital stock ofof the Company or any of its Subsidiaries, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, (ii) there are no contracts, commitments agreements or agreements relating to the voting, purchase or sale of Shares (i) between or among arrangements under which the Company or its Subsidiaries and any of its stockholders, Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act and (iiiii) except as disclosed there are no anti-dilution or price adjustment provisions contained in any forms, reports, statements security issued by the Company (or schedules filed in any agreement providing rights to security holders) that will be triggered by a third party with the SEC, among any issuance of the Note or the Conversion Shares. The Company has furnished to the Buyer true and correct copies of the Company’s stockholders or between any Certificate of Incorporation as in effect on the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation date hereof (“Certificate of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted SharesIncorporation”), the Company’s stockholdersBy-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or any other party to effect such acceleration, cancellation and termination except exercisable for the action Common Stock of the Company Board described and the material rights of the holders thereof in Section 2.7respect thereto.

Capitalization of the Company. The Immediately prior to the date of this Agreement, the authorized capital stock of the Company consists solely consisted of (a) 100,000,000 350,000,000 shares of common stock, par value $0.001 per shareCommon Stock, of which 47,898,271 Shares were 83,895,354 shares are issued and outstanding as of the date of this Agreementoutstanding, and (b) 10,000,000 5,000,000 shares of preferred stock, par value $0.001 per share, none of which have been 2,070,000 shares of convertible preferred stock are issued or are outstanding as and outstanding. As of the date of this Agreement, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under except as set forth in the Company Stock Option Plans SEC Reports or as restricted stock awards and remain subject otherwise disclosed to vesting restrictions, (ii) 2,869,061 Shares were subject the Purchaser in writing immediately prior to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares execution of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderthis Agreement, there are no outstanding options, warrants, script rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any subsidiary is or may become bound to issue additional shares of its Subsidiaries Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to repurchaseissue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, redeem conversion, exchange or otherwise acquire reset price under any of such securities. All of the outstanding shares of capital stock ofof the Company are validly issued, fully paid and nonassessable, have been issued in compliance in all material respects with all federal and state securities Laws, and none of such outstanding shares was issued in violation of any preemptive rights or other equity interests in, similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder or the Company. Except Board is required for the Stock Option Plans issuance and sale of the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there Investment Shares. There are no contracts, commitments stockholders agreements or voting agreements relating with respect to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party capital stock to effect such acceleration, cancellation and termination except for the action of which the Company Board described in Section 2.7is a party.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock35,000,000 Common Shares, par value $0.001 0.01 per share, of which 47,898,271 11,652,393 Common Shares were issued and outstanding as of the date of this AgreementApril 23, 2004, and (b) 10,000,000 1,000,000 shares of preferred stock, par value $0.001 0.01 per share, none 100,000 shares of which have been designated as Series A Junior Participating Preferred Stock, and none of which are issued or are and outstanding as of on the date of this Agreementhereof. As of the date of this AgreementApril 23, 2004, (i) 3,794,346 1,007,239 Common Shares were issued and outstanding under remained available for issuance pursuant to the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 2,467,832 Common Shares were subject to outstanding Options, and (iiiii) no 1,635,060 Common Shares were held by the Company in its treasury. Except for as set forth in this Section 3.04 and the foregoingpreferred stock purchase rights (the “Rights”) issued pursuant to the Rights Plan, there are no not any options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Common Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there . There are no outstanding obligations of the Company or any of its Subsidiaries subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except There are no contracts, commitments or agreements relating to the voting, purchase or sale of Common Shares (i) between or among the Company and any of its stockholders except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger Transactions at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholdersMerger Sub, or (ii) to the Company’s knowledge, and except as specifically disclosed in any forms, reports, statements or schedules filed by a third third-party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed evidencing options granted thereunder permit do not prohibit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 2.02(b) of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted SharesOptions, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.72.02(b). All outstanding Common Shares and all Options granted pursuant to the Stock Option Plans were issued in compliance with all applicable federal and state securities Laws.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were the Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and outstanding under the Company Stock Option Plans as restricted stock awards are fully paid and remain non-assessable and are not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the Company owns 50.4% of the issued and outstanding JEH LLC Units (the “JEH LLC Units”) (without giving effect to the transactions contemplated by this Agreement); such JEH LLC Units have been duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Act (the “Delaware LLC Act”), as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and are owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as date hereof (the termination of the Stock Option Plans as contemplated by Section 2.7 of this “Credit Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7”).

Capitalization of the Company. (a) The authorized capital stock of the Company consists solely of (a) 100,000,000 10,000,000 shares of common stock, par value $0.001 per share, stock of which 47,898,271 392,825 shares are issued and outstanding, and 10,000,000 shares of Series A Preferred Stock of which 3,066,923 shares are issued and outstanding. The Shares were constitute all of the issued and outstanding as Equity Interests of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this AgreementCompany. As of the date of this Agreement, The Shares (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictionshave been duly authorized, (ii) 2,869,061 Shares were subject to outstanding Optionsare validly issued, fully-paid, and non-assessable, and (iii) no Shares were held by the Company not issued in its treasuryviolation of any preemptive right, subscription right, right of first refusal, or applicable Law. Except for the foregoingthis Agreement and as set forth on Schedule 3.4(a), there are no (i) equity interests, profit interests or voting securities in the Company (except for the Company’s interest in its Subsidiary), (ii) securities convertible or exchangeable into any equity interest or profit interests of the Company, and (iii) outstanding options, warrants, rights, calls, subscriptions, convertible securities or other rightssecurities, or other agreements Contracts obligating the Company to issue, transfer or sell any shares of capital stock oftransfer, sell, repurchase, or other equity interests in, redeem any Equity Interests of the Company, including the Shares. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderExcept as set forth on Schedule 3.4(a), there are no outstanding obligations of the Company or any of its Subsidiaries to repurchaseauthorized stock appreciation, redeem or otherwise acquire any shares of capital stock ofphantom, or other equity interests in, similar rights with respect to the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaseras set forth on Schedule 3.4(a), there are no contractsvoting trusts, commitments shareholders agreements, proxies, or agreements relating other Contracts or understandings in effect with respect to the votingvoting or transfer of any of the Shares or any other equity interests in the Company. The Company owns one hundred percent (100%) of the membership interests in PROFleet LLC, purchase or sale a Delaware limited liability company (“PROFleet”), as its sole subsidiary. Such membership interest constitutes all of Shares the issued and outstanding Equity Interests of PROFleet. The Equity Interests of PROFleet (i) between have been duly authorized, (ii) are validly issued, fully-paid, and non-assessable, and (iii) were not issued in violation of any preemptive right, subscription right, right of first refusal, or among the Company applicable Law. There are no other (i) equity interests, profit interests or its Subsidiaries and voting securities in PROFleet, (ii) securities convertible or exchangeable into any equity interest or profit interests of PROFleet, or (iii) outstanding options, warrants, rights, calls, convertible securities, or other Contracts obligating PROFleet to issue, transfer, sell, repurchase, or redeem any of its stockholdersEquity Interests. There are no accrued, but unpaid, dividends with respect to any membership interests, equity interests, or (ii) except as disclosed other securities of PROFleet. There are no voting trusts, shareholders agreements, proxies, or other Contracts or understandings in any forms, reports, statements effect with respect to the voting or schedules filed by a third party with the SEC, among transfer of any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, membership interests or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described Equity Interests in Section 2.7PROFleet.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, the authorized capital stock of the Company consists of 100,000,000 shares of Company Common Stock and 10,000,000 shares of Preferred Stock, par value $0.01 per share (“Company Preferred Stock”). As of the close of business on May 25, 2007, (i) 3,794,346 Shares 28,898,100 shares of Company Common Stock were issued and outstanding under the Company Stock Option Plans as and 377,678 shares of restricted stock awards were issued and remain subject to vesting restrictionsoutstanding, (ii) 2,869,061 Shares no shares of Company Preferred Stock were subject to outstanding Optionsissued and outstanding, and (iii) 1,162,226 shares of Company Common Stock and no Shares shares of Company Preferred Stock were held in treasury by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating by subsidiaries of the Company to issue, transfer or sell any and 5,738,033 shares of capital stock of, or other equity interests in, Company Common Stock were reserved for issuance under the CompanyCompany Incentive Plans. All of the issued and outstanding Shares shares of Company Common Stock have been duly authorized and validly issued and are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights with no personal liability attaching to the ownership thereof. As of refusal or similar rights or limitations, andthe date of this Agreement, except as set forth on the first sentence of this Section 4.4(a), the Company does not have and is not bound by any outstanding subscriptions, options, warrants, calls, preemptive rights, commitments or agreements of any character calling for the repurchase purchase or issuance of Shares in connection with the vesting any shares of Restricted Shares under the Company Common Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations or any other equity securities of the Company or any of its Subsidiaries securities representing the right to repurchase, redeem purchase or otherwise acquire receive any shares of capital stock ofCompany Common Stock. Since the close of business on May 25, or other equity interests in, 2007 through the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 date of this Agreement, and do the Company has not require the consent or approval issued any shares of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, its capital stock or any securities convertible into or exercisable for any shares of its capital stock, other party than pursuant to effect the exercise of stock options granted pursuant to the Company Incentive Plans prior to such acceleration, cancellation and termination except for the action date. Section 4.4(a) of the Company Board described in Section 2.7Disclosure Schedule sets forth a list of Company Options as of the close of business on April 8, 2007, including the date as of which each Company Option was granted, the number of shares subject to each such Company Option at April 8, 2007 (i.e., the original amount less exercises and any cancellations), the expiration date of each such Company Option and the price at which each such Company Option may be exercised.

Capitalization of the Company. The authorized capital stock As of the Effective Date, the Company consists will be authorized to issue solely of (a) 100,000,000 25,000,000 shares of common capital stock, par value $0.001 per share, of which 47,898,271 Shares were 24,000,000 shares will be classified as New Common Stock, of which a total of 15,625,000 shares of New Common Stock will be issued and outstanding as of the date of this Agreementoutstanding, and (b) 10,000,000 1,000,000 shares of will be classified as preferred stock, par value $0.001 per share, none of which have been will be issued or are outstanding as of the date of this Agreementoutstanding. As of the date Effective Date, the only shares of this Agreement, (i) 3,794,346 Shares were New Common Stock that shall be issued and outstanding under shall be those shares of New Common Stock that shall have been issued in accordance with the Company Stock Option Plans as restricted stock awards Chapter 11 Plan and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasurythis Agreement. Except for as otherwise agreed by each of the foregoingInvestors, as of the Closing, there are will be no options, warrants, callssecurities or rights that are or may become exercisable or exchangeable for, subscriptionsconvertible into, or that otherwise give any Person any right to acquire, shares of capital stock or other securities of the Company or to receive payments based in whole or in part upon the value of the capital stock of the Company, whether pursuant to a phantom stock plan or otherwise. As of the Closing, and except as provided hereunder or contemplated by the Chapter 11 Plan, there will be no Contracts relating to the issuance, grant, sale or transfer of any equity securities, options, warrants, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares securities of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorizedExcept as contemplated by the Chapter 11 Plan, validly issued, fully paid, nonassessable and free as of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderClosing, there are will be no outstanding obligations Contracts of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock ofits equity securities, options, warrants, convertible securities or other equity interests in, the Company. Except for the Stock Option Plans securities and the agreements executed thereunder and Company will not have granted any support agreements entered into in connection registration rights with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating respect to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, securities or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among securities of any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7Debtors.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, the Company’s authorized capital stock consisted solely of 10,000,000 shares of Company Common Stock, of which (i) 3,794,346 Shares 6,777,223 shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions(of which 31,350 shares were held in treasury), (ii) 2,869,061 Shares 893,570 shares were subject to reserved for issuance upon the exercise of outstanding Company Stock Options, and (iii) no Shares shares were held by reserved for future issuance under other option, warrant or conversion agreements or arrangements. Each outstanding share of the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued Common Stock is duly authorized and outstanding Shares are duly authorized, validly issued, fully paidpaid and non-assessable, nonassessable and free has not been issued in violation of any preemptive rights, rights of refusal or similar rights or limitations, and, except for rights. Other than as set forth in the repurchase first sentence of Shares this section and in connection with the vesting of Restricted Shares Option Schedule (as defined below) and the Company’s obligations under the Stock Option Plans Rights Agreement, dated as of January 18, 2011 (the “Rights Agreement”), between the Company and Registrar and Transfer Company, as rights agent, and the agreements executed Rights (as defined in the Rights Agreement) issued thereunder, there are no outstanding obligations subscriptions, options, warrants, puts, calls, agreements, understandings, claims or other commitments or rights of any type relating to the issuance, sale, repurchase or transfer by the Company of any securities of the Company, nor are there outstanding any securities which are convertible into or exchangeable for any shares of the Company Common Stock, and neither the Company nor any of its subsidiaries has any obligation of any kind to issue any additional securities or to pay for or repurchase any securities of the Company or any predecessor. Except as set forth in Section 5.4 of its Subsidiaries to repurchasethe Company Disclosure Schedule, redeem no subsidiary of the Company owns any shares of Company Common Stock and no shares of Company Common Stock are held in treasury. All of the outstanding capital stock of each subsidiary of the Company is owned by the Company, directly or otherwise acquire indirectly, free and clear of any lien, limitation or restriction. The issuance and sale of all of the shares of capital stock of, or other equity interests indescribed in this Section 5.4 have been in compliance in all material respects with federal and state securities laws. The Company has previously delivered to Parent a certified schedule (the “Option Schedule”) accurately setting forth as of the date of this Agreement the names of all holders of options to purchase the Company Common Stock, the Company. Except for the Stock Option Plans number of shares of each class issuable to each such holder upon exercise of such option, and the agreements executed thereunder exercise price and any support agreements entered into in connection vesting schedule with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating respect to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third partythose options. The Stock Option Plans and the Company has no existing agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or to register any other party to effect such acceleration, cancellation and termination except for the action securities of the Company Board described in Section 2.7under the Securities Act or under any state securities law or granted registration rights to any person or entity.

Capitalization of the Company. The All of the outstanding Membership Interests have been duly authorized capital stock and are validly issued, duly paid and non-assessable. None of the Membership Interests were issued in violation of any preemptive or similar rights of any other person or entity, nor in violation of the United States Securities Act of 1933, as amended (the "Securities Act"), or applicable securities laws of any other jurisdiction. Exhibit A hereto sets forth a true, complete and correct list of all of the members of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued immediately preceding the execution and outstanding as of the date delivery of this Agreement, Agreement and (b) 10,000,000 shares the number of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held Membership Interests owned by the Company in its treasuryeach such Member. Except for the foregoingthis Agreement and as described in Schedule 3.3, there are no other agreements, written or oral, between the Company or any Subsidiary and any holder of its respective equity interests, relating to the acquisition, disposition or voting of its equity interests. There are no outstanding subscriptions, options, warrants, calls, subscriptions, convertible securities commitments or other rights, or any other agreements of any character obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries Subsidiary to repurchase, redeem or otherwise acquire issue any shares of capital stock of, or other equity interests inat any time or under any circumstance, the Company. Except for the Stock Option Plans including conversion of debt into equity and the agreements executed thereunder and including any support agreements entered into rights to receive securities in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among any public offering by the Company or its Subsidiaries and any of its stockholderssuccessors, or (ii) except as disclosed in Schedule 3.3. RGHI owns the Membership Interests reflected as owned by it on Exhibit A hereto, free and clear of all Liens. Upon effectiveness of the BAWAG Interest Transfer Transactions (and in any formsevent as of the time immediately prior to the Merger), reportsRGHI will own the Membership Interests reflected as owned by BOI on Exhibit A hereto, statements or schedules filed free and clear of all Liens. The Company and each of the Subsidiaries that are subject to such minimum net capital requirements maintains and has at all times maintained net capital in excess of the minimum level(s) of net capital required by a third party with the SEC, among CFTC, CME or other applicable Governmental Authorities or Self Regulatory Organizations by an amount sufficient in order to avoid the triggering of any of the Company’s stockholders "early warning" notification provisions or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7similar provisions.

Capitalization of the Company. The authorized capital stock of the ----------------------------- Company consists solely of of: (ai) 100,000,000 10,000,000 shares of common Common Stock, of which 640,845 shares will be, as of the Closing, duly and validly issued, outstanding, fully paid and nonassessable after giving effect to the recapitalization contemplated by Section 3.9; (ii) 54,500 shares of designated preferred stock, par value $0.001 .01 per share, of which 47,898,271 Shares were (a) 26,000 shares have been designated as Series A Convertible Participating Preferred Stock and will, as of the Closing, be issued, outstanding, fully paid, and nonassessable, (b) 6,500 shares have been designated as Series B Convertible Participating Preferred Stock and will, as of the Closing, be issued, outstanding, fully paid, and nonassessable, (c) 19,375 shares have been designated as Senior Redeemable Preferred Stock, none of which will be issued and outstanding as of the date of this AgreementClosing, and (bd) 10,000,000 2,625 shares have been designated as Junior Redeemable Preferred Stock, none of which will be issued and outstanding as of the Closing; and (iii) 50,000 shares of undesignated preferred stock, par value $0.001 .01 per share, none . Except as disclosed in Schedule 2.4 ------------ and except for 1,327,465 shares of which have been Common Stock issued or reserved for issuance under the Company's Stock Option and Grant Plan in the form attached hereto as Exhibit F (the "Stock Option Plan"), the Company has not issued any other shares --------- of its capital stock and there are no outstanding as warrants, options or other rights to purchase or acquire any of the date of this Agreementsuch shares, nor any outstanding securities convertible into such shares or outstanding warrants, options or other rights to acquire any such convertible securities. As of the date Closing, assuming the accuracy of the Investor representations set forth in Section 5 hereof, all of the outstanding shares of capital stock of the Company will have been offered, issued, sold and delivered in compliance with applicable federal and state securities laws. The Preferred Shares have been duly and validly authorized and, when delivered and paid for pursuant to this Agreement, (i) 3,794,346 will be validly issued, fully paid and nonassessable. The Preferred Shares were are convertible into 15,500 shares of Senior Redeemable Preferred Stock and 2,600,000 shares of Common Stock representing 80% of the Common Stock of the Company on a presently outstanding basis and 57% of the Common Stock of the Company on a fully-diluted basis after giving effect to the issuance of the 1,327,465 shares issued and outstanding or reserved for issuance under the Company Stock Option Plans Plan and the exercise, exchange or conversion of any other securities exercisable or exchangeable for or convertible into Common Stock. The relative rights, preferences, restrictions and other provisions relating to the Preferred Stock are as restricted stock awards set forth in Exhibit B attached hereto. --------- The Company has authorized and remain subject to vesting restrictions, (ii) 2,869,061 reserved for issuance upon conversion of the Preferred Shares were subject to outstanding Optionsnot less than 15,500 shares of its Senior Redeemable Preferred Stock and 2,600,000 shares of its Common Stock, and (iii) no the Conversion Shares were held by issuable upon such conversion will be, when issued in accordance with the Company in its treasuryAmended and Restated Certificate of Incorporation of the Company, duly and validly authorized and issued, fully paid and nonassessable. Except for the foregoingas set forth on Schedule 2.4, there are no options, warrants, calls, subscriptions, convertible securities preemptive rights or other rights, ------------ rights of first refusal with respect to the issuance or other agreements obligating the Company to issue, transfer or sell any shares sale of capital stock of, or other equity interests in, the Company's capital stock. All issued and outstanding Shares are duly authorizedExcept as set forth on Schedule 2.4, validly issuedno officer, fully paid, nonassessable and free of preemptive rights, rights of refusal director or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations ------------ employee of the Company or any of its Subsidiaries other person or entity has, claims to repurchase, redeem have or otherwise acquire has any shares of capital stock of, or other equity interests in, right to claim to have any interest in the Company's capital stock. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into as disclosed in connection with the Offer and the Merger at the request of Parent or PurchaserSchedule 2.4, there are no contracts, commitments restrictions on the transfer of the ------------ Company's capital stock other than those arising from federal and state securities laws or agreements relating pursuant to the votingStockholders' Agreement. Except as set forth on Schedule 2.4 or pursuant to the Stockholders' Agreement, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholdersthere are no rights, ------------ obligations, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with restrictions on the SEC, among voting of any of the Company’s stockholders 's capital stock or between any the registration of such capital stock for offering to the public pursuant to the Securities Act of 1933, as amended (the "Securities Act") with respect to the capital stock owned by the Lammle Entities or the Linn Entities or which arise pursuant to the Company’s stockholders and 's charter documents or any third agreement to which the Company is a party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination shares of the Stock Option Plans as capital stock, before giving effect to the transactions contemplated by Section 2.7 of this Agreement, are held of record and do not require beneficially by the consent or approval of persons identified in Schedule 2.4 in the holders of amounts ------------ indicated therein. Upon the outstanding Options or Restricted SharesClosing, and after giving effect to the transactions contemplated by this Agreement, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action only stockholders of the Company Board described other than the Investors will be the Lammle Entities which, collectively, will beneficially own 6,500 shares of Series B Convertible Preferred Stock, in Section 2.7the amount set forth on Appendix B. ---------- The Company has no subsidiaries or investments in any other corporation or business organization. Except as disclosed in Schedule 2.4, the Company does ------------ not own or have any direct or indirect interest in, a loan or advance to, or control over any corporation, partnership, joint venture or other entity of any kind.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were the Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and outstanding under the Company Stock Option Plans as restricted stock awards are fully paid and remain non-assessable and are not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and after giving effect to the transactions contemplated hereby, the Company will own 49.1% of the issued and outstanding JEH LLC Units (or such additional amount to reflect the exercise of the Underwriter’s option to purchase Option Shares pursuant to Section 2 hereof); such JEH LLC Units have been duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and are owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as date hereof (the termination of the Stock Option Plans as contemplated by Section 2.7 of this “Credit Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7”).

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were the Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and outstanding under the Company Stock Option Plans as restricted stock awards are fully paid and remain non-assessable and are not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the Company owns 26.2% of the issued and outstanding JEH LLC Units (or such additional amount to reflect the exercise of the Underwriters’ option to purchase Option Shares pursuant to Section 2 hereof); such JEH LLC Units have been duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and are owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as date hereof (the termination of the Stock Option Plans as contemplated by Section 2.7 of this “Credit Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7”).

Capitalization of the Company. The After giving effect to the Reorganization, the Company will have an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were have been duly and validly authorized and issued and outstanding as of the date of this Agreement, are fully paid and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or non-assessable and are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and, after giving effect to the Reorganization, the Company will own 25.3% of the issued and outstanding JEH LLC Units (or such additional amount to reflect the exercise of the Underwriters’ option to purchase Option Shares pursuant to Section 2 hereof); such JEH LLC Units will be duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and will be owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration date hereof (the “Credit Agreement”), and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this that certain Second Lien Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Energy Capital, Inc., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and do not require Sole Bookrunner, and the consent or approval of lenders thereto, as amended through the holders of date hereof (the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7“Term Loan”).

Capitalization of the Company. The Company's authorized capital stock consists of the Company consists solely of (a) 100,000,000 5,000 shares of Series A preferred stock, par value $.01 per share ("Series A Preferred"), 3,010 shares of Series B preferred stock, par value $.01 per share ("Series B Preferred" and together with the Series A Preferred, the "Preferred Stock"), 5,000,000 shares of Class A common stock, par value $0.001 .01 per share, of which 47,898,271 Shares were issued share ("Class A Common") and outstanding as of the date of this Agreement, and (b) 10,000,000 1,000,000 shares of preferred Class B common stock, par value $0.001 .01 per shareshare ("Class B Common" and together with the Class A Common, none the "Common Stock"), of which 1,990 shares of Series A Preferred, 3,010 shares of Series B Preferred and 1,000,000 shares of Class A Common are issued and outstanding on the date hereof and held of record and beneficially by the Stockholders as set forth on Schedule -------- I. All such issued and outstanding Shares have been been, and on the Closing Date - will be, duly authorized and validly issued and are, or are outstanding as will be on the Closing Date, fully paid and non-assessable. No Shares were issued in violation of the date terms of this Agreementany agreement or understanding binding upon the Company or the Subsidiaries, and all Shares were issued in compliance with all applicable federal and state securities laws and regulations. Except for (a) the Shares listed on Schedule I hereto and (b) the stock options described on Schedule II ---------- ----------- attached hereto (the "Outstanding Stock Options"), there are not, and on the Closing Date there will not be, outstanding (i) any options, warrants or other rights to purchase from the Company any capital stock of the Company; (ii) any securities convertible into or exchangeable for shares of such stock; (iii) any stock appreciation rights, phantom stock or other similar rights or plans or (iv) any other commitments of any kind for the issuance of additional shares of capital stock or options, warrants or other securities of the Company. As of the date of this AgreementClosing Date, (i) 3,794,346 Shares were issued and outstanding under the Company shall have redeemed the Outstanding Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by Options in accordance with the redemption agreements between the Company in its treasury. Except for and each Option Holder which are attached hereto as Exhibits B, C and D (the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7"Redemption ------------------- Agreements").

Capitalization of the Company. (i) The authorized authorized, issued and outstanding shares of all classes of capital stock of the Company consists solely is set forth in Schedule 3.3 hereto. Upon issuance, the Shares will constitute 51.0% of (a) 100,000,000 shares the aggregate voting power of common stock, par value $0.001 per share, of which 47,898,271 Shares were all the issued and outstanding as voting securities of the date Company on a fully diluted basis (i.e., after giving effect to the exercise of all options, warrants, or similar rights to acquire shares of Common Stock, other than the Note). The Shares have been duly authorized for issuance and sale to Spotless pursuant to the terms of this Agreement, and, upon payment of the Purchase Price and (b) 10,000,000 delivery of the certificates representing the Shares, the Shares will be validly issued and fully paid and nonassessable. The issuance of the Shares is not subject to any preemptive or other similar rights. Except as set forth in Schedule 3.3, the shares of preferred stock, par value $0.001 per share, none of which have been Common Stock or Series B Preferred to be issued or are outstanding as upon conversion of the date Note, as the case may be, and the shares of this Agreement. As Common Stock to be issued upon conversion of the date Series B Preferred will be, upon any such conversion, duly authorized, validly issued, fully paid and nonassessable. All of this Agreement, (i) 3,794,346 Shares were the issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, of the Company. All issued and outstanding Shares Company are duly authorized, validly issued, fully paidfull paid and nonassessable. Except as disclosed in Schedule 3.3 hereto, nonassessable there are no agreements, arrangements or understandings (including, without limitation, options or warrants), to which the Company is a party, or by which the Company is bound relating to the issuance, acquisition or disposition of any shares of capital stock of the Company or any interest therein, and free there are no agreements, arrangements or understandings to which the Company is a party or by which it is bound relating to the repurchase or redemption of preemptive rights, rights any shares of refusal or similar rights or limitations, and, except its capital stock. Except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans options, warrants and the agreements executed thereunderother rights listed on Schedule 3.3 hereto, there are no outstanding obligations options, warrants or other rights to subscribe for or purchase, or securities convertible into or exchangeable for, shares of the Company or any of its Subsidiaries to repurchaseCompany's capital stock, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contractsagreements, commitments arrangements or agreements relating understandings to the voting, purchase or sale of Shares (i) between or among which the Company is a party or its Subsidiaries and any by which it is bound pursuant to which the Company is or may be required to issue or sell additional shares of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7capital stock.

Capitalization of the Company. The authorized capital stock of the Company consists solely of of: (aA) 100,000,000 80,000,000 shares of common stock, par value $0.001 per share, Common Stock of which 47,898,271 Shares were 4,693,337 shares are issued and outstanding as of the date of this Agreement, out- standing; and (bB) 10,000,000 7,500,000 shares of preferred stock, par value $0.001 .01 per shareshare (the "Preferred Stock"), none of which have been issued or 4,500,000 shares are outstanding designated as Series A 9?% Cumulative Convertible Preferred Stock (the "Series A Preferred") and 25,000 shares are designated as Series A Junior Participating Preferred. There are not more than 3,881,261 shares of the date Series A Preferred issued and outstanding. No other class of this Agreement. As capital stock of the date Company is, or, other than the Securities, up to an aggregate of this Agreement, (i) 3,794,346 Shares were issued and outstanding under $1,500,000 in value of Class B Preferred offered to the employees of the Company Stock Option Plans (the "Employee Preferred") and such additional number of shares of Class B Preferred as restricted stock awards and remain subject may be agreed to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company Purchasers in its treasurywriting, at the Closings will be issued. Except From the date hereof until the Initial Closing, except for the foregoingissuance of the Securities and the Employee Preferred and the exercise of any options or the conversion of the Preferred Stock described in the Disclosure Letter, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell will not issue any shares of its capital stock. All outstanding shares of capital stock of, or other equity interests in, of the Company. All issued and outstanding Shares are Company have been duly authorized, are validly issued, fully paid, paid and nonassessable and free have been issued in compliance with applicable federal and state securities laws. At the Initial Closing, all of the Securities subject to such Closing will be duly authorized and, when issued in accordance with this Agreement, will be validly issued, fully paid and nonasses- sable. The stockholders of the Company have no preemptive rights, rights of refusal or similar rights or limitations, and, except for with respect to the repurchase securities of Shares the Company. Except as set forth in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderDisclosure Letter, there are no outstanding (i) securities or obligations of the Company (other than the Series A Preferred) convertible into or exchangeable for any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, of the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in warrants (other than 414,105 warrants), rights (other than 4,693,337 Rights), or options to subscribe for or purchase from the Company any forms, reports, statements such capital stock or schedules filed by a third party with the SEC, among any such convertible or exchangeable securities or obligations or (iii) obligations of the Company’s stockholders Company to issue such shares, any such convertible or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent exchangeable securities or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholdersobligations, or any other party to effect such accelerationwarrants, cancellation and termination except for the action of the Company Board described in Section 2.7rights or options.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 3,794,346 Shares were 1,000,000 shares of Preferred Stock, par value $.01 per share, of which none are issued and outstanding under outstanding, and (ii) 10,000,000 shares of Common Stock, par value $.01 per share, of which 5,239,774 Shares are issued and 4,337,886 Shares are outstanding. Except for (i) the rights created pursuant to this Agreement, the Company Stock Option Plans as restricted stock awards Plan and remain subject to vesting restrictions, the Company Rights Plan and (ii) 2,869,061 Shares were subject to outstanding Options, as set forth in Schedule -------- 1.7 and (iiiSchedule 2.3(a) no Shares were held by of the Company in its treasury. Except for the foregoingDisclosure Letter, there are no --- --------------- other options, warrants, calls, subscriptions, convertible securities or other rights, commitments or other agreements of any character to which the Company is a party or by which it is bound obligating the Company to issue, transfer sell, deliver, repurchase or sell redeem or cause to be issued, sold, delivered, repurchased or redeemed any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are, and all Shares subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid, paid and nonassessable and free of preemptive rights, rights or rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations first refusal. None of the Company or any of its Subsidiaries is required to repurchaseredeem, redeem repurchase or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholdersSubsidiaries, or (ii) except respectively, as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any result of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as transactions contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action . Except as set forth in Schedule 2.3(a) of the Company Disclosure Letter or other than the Company --------------- Rights Plan, the Company has no stockholder rights plan or agreement in force providing for the issuance to holders of Shares of rights to purchase or receive stock, cash or other assets upon the acquisition or proposed acquisition of Shares by a Person (a "Rights Plan"), nor has the Company's Board described in Section 2.7of Directors or stockholders ever adopted a Rights Plan.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 500,000 shares of common stockCommon Stock, par value $0.001 1.00 per share, of which 47,898,271 Shares were 68,000 shares are outstanding and 32,000 shares are held in the Company's treasury. All outstanding shares of capital stock of the Company have been validly issued and are fully paid and nonassessable, and no shares of capital stock of the Company are subject to, nor have any been issued in violation of, preemptive or similar rights. All issuances, sales, and repurchases by the Company of shares of its capital stock have been effected in compliance with all Applicable Laws, including without limitation applicable federal and state securities laws. The Shares constitute (and at the Closing will constitute) all the outstanding shares of capital stock of the Company. Except as set forth above in this Section 3.4, there are (and as of the date of this Agreement, and (bClosing Date there will be) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under no shares of capital stock or other voting securities of the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictionsCompany, (ii) 2,869,061 Shares were subject to outstanding Optionsno securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of the Company, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities options or other rightsrights to acquire from the Company, or other agreements obligating and no obligation of the Company to issueissue or sell, transfer or sell any shares of capital stock ofor other voting securities of the Company or any securities of the Company convertible into or exchangeable for such capital stock or voting securities, and (iv) no equity equivalents, interests in the ownership or earnings, or other equity interests in, similar rights of or with respect to the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except Except for the repurchase of Shares 11,612 shares of the Company's capital stock from each of the Sellers to be effected immediately prior to the Closing as reflected in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderSection 5.2(c) hereof, there are (and as of the Closing Date there will be) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem redeem, or otherwise acquire any shares of capital stock ofthe foregoing shares, securities, options, equity equivalents, interests, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7rights.

Capitalization of the Company. The authorized capital stock of the Company consists solely of of: (a) 100,000,000 1,000,000 shares of common stock, par value $0.001 per shareCommon Stock, of which 47,898,271 Shares were issued and outstanding 75 shares will be, as of the date of this AgreementInitial Closing, duly and validly issued, outstanding, fully paid, and nonassessable; (b) 10,000,000 1,012,000 shares of designated preferred stock, par value $0.001 .01 per share, of which (i) 506,000 shares have been designated as Series A Convertible Participating Preferred Stock, of which 199,000 shares will be, as of the Initial Closing, duly and validly issued, outstanding, fully paid, and nonassessable and (ii) 506,000 shares have been designated as Redeemable Preferred Stock, none of which have been issued or are will be outstanding as of the date Initial Closing; and (c) 300,000 shares of this Agreementundesignated preferred stock, par value $.01 per share. Except for 62,525 shares of Common Stock reserved for issuance under a Stock Option Plan to be adopted by the Board of Directors of the Company and to contain the terms set forth on Exhibit A hereto (the "Stock Option Plan") and 5,682 shares of Common Stock issuable upon the exercise of warrants issued to the Alta Investors in connection with the Alta Loans (the "Warrants" and any shares of Common Stock or any successor class of capital stock of the Company hereafter issued or issuable upon exercise of the Warrants, the "Warrant Shares") and except as otherwise disclosed in Schedule 2.4, the Company has not issued any other shares of its capital stock and there are no outstanding warrants, options or other rights to purchase or acquire any of such shares, nor any outstanding securities convertible into such shares or outstanding warrants, options or other rights to acquire any such convertible securities. As of the date Initial Closing, all of the outstanding shares of capital stock of the Company will have been offered, issued, sold and delivered in compliance with applicable federal and state securities laws. The Series A Preferred Shares and the Common Shares have been duly and validly authorized and, when delivered and paid for pursuant to this Agreement, (i) 3,794,346 will be validly issued, fully paid and nonassessable. The Series A Preferred Shares were issued are initially convertible into 406,000 shares of Redeemable Preferred Stock and outstanding 406,000 shares of Common Stock representing 85.6% of the Common Stock of the Company on a fully-diluted basis after giving effect to the issuance of the 62,525 shares reserved for issuance under the Company Stock Option Plans Plan and the exercise, exchange or conversion of any other securities exercisable or exchangeable for or convertible into Common Stock. The relative rights, preferences, restrictions and other provisions relating to the Series A Preferred Stock and the Redeemable Preferred Stock are as restricted stock awards set forth in Exhibit B attached hereto. The Company has authorized and remain subject to vesting restrictions, (ii) 2,869,061 reserved for issuance upon conversion of the Series A Preferred Shares were subject to outstanding Optionsnot less than 406,000 shares of Redeemable Preferred Stock and 406,000 shares of Common Stock, and (iii) no the Conversion Shares were held by issuable upon such conversion will be, when issued in accordance with the Certificate of Incorporation of the Company, duly and validly authorized and issued, fully paid and nonassessable. The Company has authorized and reserved for issuance upon exercise of the Warrants not less than 5,682 shares of Common Stock, and the Warrant Shares issuable upon such exercise will be, when issued in its treasuryaccordance with the Certificate of Incorporation of the Company, duly and validly authorized and issued, fully paid and nonassessable. Except for as set forth in the foregoingStockholders' Agreement referred to in Section 3.5 hereof, there are no options, warrants, calls, subscriptions, convertible securities preemptive rights or other rights, rights of first refusal with respect to the issuance or other agreements obligating the Company to issue, transfer or sell any shares sale of capital stock of, or other equity interests in, the Company's capital stock, other than rights to which holders of the Securities are entitled as set forth in Section 4.11 hereof. All issued and outstanding Shares are duly authorizedNo officer, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal director or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations employee of the Company or any of its Subsidiaries other person or entity has, claims to repurchase, redeem have or otherwise acquire has any shares of right to claim to have any interest in the Company's capital stock of, other than as disclosed in Schedule 2.4 or other equity interests in, as an Investor hereunder. There are no restrictions on the transfer of the Company's capital stock other than those arising from federal and state securities laws or under this Agreement or the Stockholders' Agreement referred to in Section 3.5 hereof. Except for as set forth in the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or PurchaserStockholders' Agreement, there are no contractsrights, commitments obligations or agreements relating to restrictions on the voting, purchase or sale voting of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s 's capital stock or the registration of such capital stock for offering to the public pursuant to the Securities Act of 1933, as amended (the "Securities Act"). The shares of the capital stock outstanding before giving effect to the transactions contemplated by this Agreement (which consist of 1,000 shares of Common Stock) are held of record and beneficially by the Founder and will be redeemed by the Company at the Initial Closing. After giving effect to the transactions contemplated by this Agreement, the Investors will be the only stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares Company has no subsidiaries or investments in any other corporation or business organization. Except as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Sharesset forth in Schedule 2.4, the Company’s stockholdersCompany does not own or have any direct or indirect interest in, a loan or advance to, or control over any corporation, partnership, joint venture or other party to effect such acceleration, cancellation and termination except for the action entity of the Company Board described in Section 2.7any kind.

Capitalization of the Company. (a) The authorized authorized, issued and outstanding shares of all classes of capital stock of the Company consists solely is set forth in Schedule 3.3 hereto. Upon issuance, the Shares will constitute 51.0% of (a) 100,000,000 shares the aggregate voting power of common stock, par value $0.001 per share, of which 47,898,271 Shares were all the issued and outstanding as voting securities of the date Company on a fully diluted basis (i.e., after giving effect to the exercise of all options, warrants, or similar rights to acquire shares of Common Stock, other than the Note). The Shares have been duly authorized for issuance and sale to Spotless pursuant to the terms of this Agreement, and, upon payment of the Purchase Price and (b) 10,000,000 delivery of the certificates representing the Shares, the Shares will be validly issued and fully paid and nonassessable. The issuance of the Shares is not subject to any preemptive or other similar rights. Except as set forth in Schedule 3.3, the shares of preferred stock, par value $0.001 per share, none of which have been Common Stock or Series B Preferred to be issued or are outstanding as upon conversion of the date Note, as the case may be, and the shares of this Agreement. As Common Stock to be issued upon conversion of the date Series B Preferred will be, upon any such conversion, duly authorized, validly issued, fully paid and nonassessable. All of this Agreement, (i) 3,794,346 Shares were the issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, of the Company. All issued and outstanding Shares Company are duly authorized, validly issued, fully paidfull paid and nonassessable. Except as disclosed in Schedule 3.3 hereto, nonassessable there are no agreements, arrangements or understandings (including, without limitation, options or warrants), to which the Company is a party, or by which the Company is bound relating to the issuance, acquisition or disposition of any shares of capital stock of the Company or any interest therein, and free there are no agreements, arrangements or understandings to which the Company is a party or by which it is bound relating to the repurchase or redemption of preemptive rights, rights any shares of refusal or similar rights or limitations, and, except its capital stock. Except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans options, warrants and the agreements executed thereunderother rights listed on Schedule 3.3 hereto, there are no outstanding obligations options, warrants or other rights to subscribe for or purchase, or securities convertible into or exchangeable for, shares of the Company or any of its Subsidiaries to repurchaseCompany's capital stock, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contractsagreements, commitments arrangements or agreements relating understandings to the voting, purchase or sale of Shares (i) between or among which the Company is a party or its Subsidiaries and any by which it is bound pursuant to which the Company is or may be required to issue or sell additional shares of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7capital stock.

Capitalization of the Company. (a) The authorized capital stock of the Company consists solely of (ai) 100,000,000 50,000,000 shares of common stock, par value $0.001 per shareCompany Common Stock, of which 47,898,271 Shares were 7,179,429 shares are currently issued and outstanding as of the date of this Agreement, and (bii) 10,000,000 15,000,000 shares of preferred stock, $.001 par value $0.001 per sharevalue, none of which have been issued or 3,250 Preferred Shares are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were currently issued and outstanding. All outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, Company have been validly issued, and are fully paid, nonassessable and free of preemptive rights. Set forth in Schedule 4.2(a) are all outstanding options, warrants, or other --------------- rights to purchase capital stock of refusal the Company from the Company. Except as set forth above or in Schedule 4.2(a), there are outstanding (A) no shares of --------------- capital stock or other voting securities of the Company, (B) no securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company, (C) no options, subscriptions, warrants, convertible securities, calls or other rights to acquire from the Company, and no obligation of the Company to issue, deliver or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, and (D) no equity equivalents, performance shares, interests in the ownership or earnings of the Company or other similar rights or limitationsissued by the Company (the items referred to in clauses (A)-(D) are referred to herein as "COMPANY SECURITIES"). Except as set forth on Schedule 4.2(a) hereto, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, (i) there are no outstanding obligations of the Company or any of its Subsidiaries --------------- to repurchase, redeem or otherwise acquire any Company Securities, (ii) no agreement or other document grants or imposes on any shares of capital stock ofthe Company Common Stock any right, preference, privilege or restriction with respect to the transactions contemplated hereby (including without limitation any rights of first refusal), other equity interests in, than the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and right to dissent from the Merger at the request of Parent or Purchaser, as provided in Section 2.1(e) above and (iii) there are no contractsbonds, commitments debentures, notes or agreements relating to the voting, purchase other indebtedness having general voting rights (or sale of Shares (iconvertible into securities having such rights) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7issued and outstanding.

Capitalization of the Company. The After giving effect to the Reorganization, the Company will have an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization;” all the outstanding shares of capital stock of the Company consists solely of (a) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were have been duly and validly authorized and issued and outstanding as of the date of this Agreement, are fully paid and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or non-assessable and are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain not subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held any pre-emptive or similar rights; except as described in or expressly contemplated by the Company in its treasury. Except for Pricing Disclosure Package and the foregoingProspectus, there are no optionsoutstanding rights (including, warrantswithout limitation, callspre-emptive rights), subscriptions, convertible securities warrants or other rightsoptions to acquire, or other agreements obligating the Company to issueinstruments convertible into or exchangeable for, transfer or sell any shares of capital stock ofor other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive any such convertible or exchangeable securities or any such rights, rights of refusal warrants or similar rights or limitations, and, except for options; the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any , as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and, after giving effect to the Reorganization, the Company will own [·]% of the issued and outstanding JEH LLC Units (or such additional amount to reflect the exercise of the Underwriters’ option to purchase Option Shares pursuant to Section 2 hereof); such JEH LLC Units will be duly and validly authorized and issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable, and limited to the extent set forth in JEH LLC’s organizational documents) and will be owned by the Company’s stockholders , free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. The Stock Option Plans , except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the agreements executed thereunder permit lenders thereto, as amended through the acceleration date hereof (the “Credit Agreement”), and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this that certain Second Lien Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Energy Capital, Inc., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and do not require Sole Bookrunner, and the consent or approval of lenders thereto, as amended through the holders of date hereof (the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7“Term Loan”).

Capitalization of the Company. The Company has authorized capital stock of the Company consists solely of (a) 100,000,000 200,000,000 shares of common stockCommon Stock, par value $0.001 per share, 121,141,392 of which 47,898,271 Shares were shares are issued and outstanding as of the date of this Agreementoutstanding, and (b) 10,000,000 4,995,000 shares of preferred stockseries B Preferred Stock, par value $0.001 per share, none 0 of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iiic) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any 5,000 shares of capital stock ofSeries A Preferred Stock, or other equity interests in, all of which has been issued and subsequently converted to Common Stock (together with the CompanyCommon Stock the “Capital Stock”). All of the issued and outstanding Shares shares of the Capital Stock are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, non-assessable and, except for the repurchase Series B Stock, free of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there preemptive rights. There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of its securities excluding the Investors. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any shares of Capital Stock. As of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock ofof the Company or any of its subsidiaries, or other equity interests incontracts, commitments, understandings or arrangements by which the Company. Except for Company or any of its subsidiaries is or may become bound to issue additional shares of capital stock of the Stock Option Plans and Company or any of its subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the agreements executed thereunder and Company or any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaserits subsidiaries, (ii) there are no contractsoutstanding debt securities, commitments (iii) there are no agreements or agreements relating to the voting, purchase or sale of Shares (i) between or among arrangements under which the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with subsidiaries is obligated to register the SEC, among sale of any of their securities under the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this AgreementSecurities Act, and do not require (iv) there are no outstanding registration statements and there are no outstanding comment letters from the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, Commission or any other party to effect such acceleration, cancellation and termination except for regulatory agency. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the action issuance of the Company Board Preferred Stock as described in Section 2.7this Agreement.

Capitalization of the Company. The As of immediately prior to the Redemption, the authorized and issued equity capital stock of the Company consists solely of (a) 100,000,000 27,454 shares of common stockCommon Stock, par value $0.001 per sharerepresenting 100% of the authorized, of which 47,898,271 Shares were issued and outstanding as Equity Securities of the date Company, all of this Agreementwhich, except those owned by the Purchaser, are issued to the applicable Sellers and (b) 10,000,000 shares in the amounts set forth in Schedule 3.4. All of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were such issued and outstanding under shares of Common Stock of the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable paid and free and clear of Taxes, charges, Encumbrances and preemptive rights, rights and have been issued in compliance with all Applicable Laws. As of refusal or similar rights or limitations, and, except for immediately following the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans Redemption and the agreements executed thereunderconsummation of the transactions contemplated by the Restricted Stock Cancellation Agreement, there are no and immediately prior to the Closing, and excluding the shares of Common Stock owned by the Purchaser, the issued and outstanding obligations equity capital of the Company shall consist solely of such number of shares of Common Stock to be listed on Schedule I under the heading “Sold Shares”, representing 100% of the authorized, issued and outstanding Equity Securities of the Company, except those owned by the Purchaser. The Company has not granted or issued any options, convertible securities, warrants, phantom equity, equity appreciation rights, Encumbrances, anti-dilution provisions or commitments of any character relating to any of its Subsidiaries equity other than as contemplated by this Agreement or the Related Documents, and no Person (other than the Company pursuant to repurchase, redeem the Redemption Agreement) has any right to purchase or otherwise acquire any shares such equity. Other than that certain Stockholders’ Agreement dated as of capital stock ofJune 20, 2014, as may be amended from time to time, by and among the Company and the stockholders party thereto, there is no voting trust, voting agreement, proxy or other equity interests in, agreement or understanding to which the Company is a party with respect to the voting of the Equity Securities of the Company. Except for Immediately following the Stock Option Plans Closing, the Purchaser shall be the owner of 100% of the authorized, issued and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any outstanding Equity Securities of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 60,000,000 shares of common stockCommon Stock, par value $0.001 0.01 per share, of which 47,898,271 Shares were issued and outstanding which, as of the date of this Agreementhereof, 42,828,563 shares are outstanding and (b) 10,000,000 held by persons or entities other than a Company Subsidiary, no shares are outstanding and held by a Company Subsidiary and no shares are held in the Company's treasury; 5,000,000 shares of preferred stockPreferred Stock, par value $0.001 0.01 per share, none of which have been issued or are outstanding which, as of the date hereof, 1,380,000 shares designated as $2.25 Convertible Exchangeable Preferred Stock are outstanding and held by persons or entities other than a Company Subsidiary and no shares designated as such are held by a Company Subsidiary, 2,750 shares designated as Series A Convertible Preferred Stock are outstanding and held by persons or entities other than a Company Subsidiary and no shares designated as such are held by a Company Subsidiary, and no such shares of this Agreementeither such designation are held in the Company's treasury. As All outstanding shares of capital stock of the date Company have been validly issued and are fully paid and nonassessable, and no shares of capital stock of the Company are subject to, nor have any been issued in violation of, preemptive or similar rights. All issuances, sales, and repurchases by the Company of shares of its capital stock have been effected in compliance with all Applicable Laws, including without limitation applicable federal and state securities laws. Schedule 3.4 describes all outstanding options and warrants to purchase Company Stock, and the aggregate number of shares of Company Common Stock reserved for issuance and issuable upon the exercise of outstanding warrants and stock options. Except as set forth above in this AgreementSection and on Schedule 3.4, there are (and as of the Closing Date there will be) outstanding (i) 3,794,346 Shares were issued and outstanding under no shares of capital stock or other voting securities of the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictionsCompany, (ii) 2,869,061 Shares were subject to outstanding Optionsno securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of the Company, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities warrants or other rights (including preemptive rights) to acquire from the Company, or other agreements obligating and no obligation of the Company to issueissue or sell, transfer or sell any shares of capital stock ofor other voting securities of the Company or any securities of the Company convertible into or exchangeable for such capital stock or voting securities, and (iv) no equity equivalents, interests in the ownership or earnings, or other equity interests in, similar rights of or with respect to the Company. All issued There are (and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free as of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, Closing Date there are will be) no outstanding obligations of the Company or any of its Subsidiaries Subsidiary to repurchase, redeem redeem, or otherwise acquire any shares of capital stock the foregoing shares, securities, options, warrants, equity equivalents, interests, or rights. The Company is not a party to, and is not aware of, any voting agreement, voting trust, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent similar agreement or Purchaser, there are no contracts, commitments or agreements arrangement relating to the voting, purchase any class or sale of Shares (i) between or among the Company or its Subsidiaries and any series of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third partycapital stock. The classes of Company Stock Option Plans denominated as Company Common Stock and Company Convertible Exchangeable Preferred Stock are each listed for trading and trade on the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7NASDAQ NMS.

Capitalization of the Company. The authorized capital stock of the Company consists solely of: 200,000,000 authorized shares, consisting of (a) 100,000,000 authorized shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding as of the date of this Agreement, and (b) 10,000,000 50,000,000 authorized shares of blank check common stock and 50,000,000 authorized shares of blank check preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (ix) 3,794,346 Shares 1,989,787 shares of common stock were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Optionsoutstanding, and (iiiy) no Shares 659 shares of common stock were issued and held by the Company in its treasury. Except for All of the foregoingoutstanding shares of capital stock of the Company are, and all shares of capital stock of the Company which may be issued as contemplated or permitted by this Agreement will be, when issued, duly authorized and validly issued, fully paid and non-assessable and not subject to any pre-emptive or similar rights (and not issued in violation of any preemptive or similar rights). As of the date of this Agreement, except as set forth in this Section 4.04, (i) there are no other equity securities of the Company or any of its Subsidiaries issued or authorized and reserved for issuance, (ii) there are no outstanding options, warrants, callspreemptive rights, subscriptions, convertible securities calls or other rights, convertible securities, exchangeable securities, agreements or other agreements commitments of any character obligating the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock ofequity interest the Company or such Subsidiary or any securities convertible into or exchangeable for such equity interests, or other any commitment to authorize, issue or sell any such equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, andsecurities, except for pursuant to the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans Transaction Documents, and the agreements executed thereunder, (iii) there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into interest in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, Subsidiaries or any such securities or agreements listed in clause (ii) of this sentence, except pursuant to the Transaction Documents or as disclosed in any forms, reports, statements or schedules filed by a third party with set forth on Schedule 4.04. Neither the SEC, among Company nor any of its Subsidiaries has outstanding bonds, debentures, notes or other Indebtedness, the holders of which have the right to vote (or which are convertible or exchangeable into or exercisable for securities having the right to vote) with the Company’s stockholders on any matter. There are no voting trusts or between other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting or registration of capital stock or other equity interest of the Company or any of its Subsidiaries, except pursuant to the Transaction Documents. No Subsidiary of the Company owns any capital stock of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7.

Capitalization of the Company. The Company has authorized capital stock of the Company consists solely of (a) 100,000,000 two hundred fifty million (250,000,000) shares of common stockCommon Stock, par value $0.001 per share, six million three hundred eighty seven thousand three hundred seventy-two (6,387,372) of which 47,898,271 Shares were shares are issued and outstanding as of the date of this Agreementoutstanding, and (b) 10,000,000 ten million (10,000,000) shares of preferred stockSeries A Stock, par value $0.001 per share, none seven million four hundred thirty-three thousand nine hundred eighty-eight (7,433,988) shares of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under (together with the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests inCommon Stock, the Company“Capital Stock”). All of the issued and outstanding Shares shares of the Capital Stock are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, non-assessable and, except for the repurchase Preferred Stock, free of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there preemptive rights. There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of its securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any shares of Capital Stock. As of the date hereof, (i) except as set forth in Schedule 3.3, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock of the Company or any of its subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries is or may become bound to issue additional shares of Capital Stock of the Company or any of its subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock ofof the Company or any of its subsidiaries, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, (ii) there are no contractsoutstanding debt securities, commitments (iii) there are no agreements or agreements relating to the voting, purchase or sale of Shares (i) between or among arrangements under which the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with subsidiaries is obligated to register the SEC, among sale of any of their securities under the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this AgreementSecurities Act, and do not require (iv) there are no outstanding registration statements and there are no outstanding comment letters from the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, Commission (as defined herein) or any other party to effect such acceleration, cancellation and termination except for regulatory agency. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the action issuance of the Company Board Preferred Stock as described in Section 2.7this Agreement.

Capitalization of the Company. The As of the date hereof, the Company's authorized capital stock consisted solely of 10,000,000 shares of Stadxxxxxxx Xxxmon Stock, of which (i) 2,004,008 shares are issued and outstanding, (ii) no shares are issued and held in treasury and no shares are held by subsidiaries of the Company and (iii) 237,773 shares are reserved for issuance upon the exercise of outstanding options, 162,227 shares are reserved for issuance upon the exercise of options which have not been granted and no shares are reserved for issuance for any other reason. Each outstanding share of the Company's capital stock is duly authorized and validly issued, fully paid and nonassessable, and has not been issued in violation of any preemptive or similar rights. Other than as set forth in the first sentence hereof or in Section 3.4 to the Companies Disclosure Schedule, there are no outstanding subscriptions, options, warrants, puts, calls, agreements, understandings, claims or other commitments or rights of any type relating to the issuance, sale, repurchase or transfer by the Company of any securities of the Company, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company, and neither the Company consists solely nor any subsidiary of (a) 100,000,000 the Company has any obligation of any kind to issue any additional securities or to pay for or repurchase any securities of the Company or any predecessor. Section 3.4 of the Companies' Disclosure Schedule accurately sets forth as of the date hereof the names of, and the number of shares of common each class (including the number of shares issuable upon exercise of stock options and the exercise price and vesting schedule with respect thereto) and the number of options held by, all holders of options to purchase the Company's capital stock. The Company has no agreement, par value $0.001 per sharearrangement or understandings to register any securities of the Company or any of its subsidiaries under the Securities Act of 1933, of which 47,898,271 Shares were issued as amended, or under any state securities law and outstanding has not granted registration rights to any person or entity (other than agreements, arrangements or understandings with respect to registration rights that are no longer in effect as of the date of this Agreement). Unless any Stock Options are canceled, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued expire or are outstanding as otherwise terminated prior to the Closing, the Fully Diluted Number shall be 2,337,282 plus the number of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain shares subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board options described in Section 2.7IV,C. of the Forsxxx Xxxeement if any such options are granted.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (a) 100,000,000 50,000,000 shares of common stock, par value $0.001 .01 per shareshare (the "Common Stock"), of which 47,898,271 Shares were 4,127,750 shares are issued and outstanding as of the date of this Agreementoutstanding, and (b) 10,000,000 5,000,000 shares of preferred stock, par value $0.001 .01 per share. The Company's Board of Directors has authorized the designation of 450,000 shares of the preferred stock as the Series A Convertible Preferred Stock (the "Series A Preferred Stock"), none and all of the authorized shares of Series A Preferred Stock are issued and outstanding. The Company's Board of Directors has authorized the designation of 200,000 shares of the preferred stock as the Series B Convertible Preferred Stock (the "Series B Preferred Stock"), of which have been 124,831 shares are issued or are outstanding as and outstanding. The Company's Board of Directors has authorized the designation of 500,000 shares of the date preferred stock as the 10% Preferred Stock, of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were which 115,000 shares will be issued and outstanding under upon the Company Stock Option Plans as restricted stock awards First Closing and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any 250,000 shares of capital stock of, or other equity interests in, the Company. All will be issued and outstanding Shares are duly authorizedupon the Second Closing. The Company's Board of Directors has authorized the designation of 100 shares of the preferred stock as the Series C Preferred Stock, validly issuedof which 46 shares will be issued and outstanding upon the First Closing and 100 shares will be issued and outstanding upon the Second Closing. Except as set forth on Section 2.2 of the Disclosure Schedule, fully paidattached hereto and incorporated herein by reference (the "Disclosure Schedule"), nonassessable and free of at the Closings there will be no other warrants, options, subscriptions or other rights or preferences (including conversion or preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no ) outstanding obligations to acquire capital stock of the Company or any of its Subsidiaries to repurchasesubsidiaries, redeem or otherwise acquire any shares of notes, securities or other instruments convertible into or exchangeable for capital stock ofof the Company, nor any commitments, agreements or other equity interests inunderstandings by or with the Company with respect to the issuance thereof, nor any obligation to repurchase or redeem any capital stock of the Company. Except for as set forth on Section 2.2 of the Stock Option Plans and Disclosure Schedule, no shareholders of the agreements executed thereunder and Company have any support agreements entered into in connection with right to require the Offer and the Merger at the request registration of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale any securities of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed to participate in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third partysuch registration. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of All outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action securities of the Company Board described have been issued in Section 2.7full compliance with an exemption or exemptions from the registration and prospectus delivery requirements of the Securities Act of 1933, as amended (the "Securities Act") and from the registration and qualification requirements of all applicable state securities laws.

Capitalization of the Company. The Company has authorized capital stock of the Company consists solely of (a) 100,000,000 50,000,000 shares of common stockCommon Stock, par value $0.001 per share, 49,993,987 of which 47,898,271 Shares were shares are issued and outstanding as of the date of this Agreementoutstanding, and (b) 10,000,000 1,000,000 shares of preferred stock, par value $0.001 per share, Preferred Stock of which 72,000 shares of Series A Preferred Stock have been authorized but none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were is issued and outstanding under (together with the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests inCommon Stock, the Company“Capital Stock”). All of the issued and outstanding Shares shares of the Capital Stock are duly authorized, validly issued, fully paid, nonassessable non-assessable and free of preemptive rights. Except as set forth in the Disclosure Schedule, rights of refusal the Transaction Documents or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, SEC Documents (a) there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of its securities, (b) there are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any shares of Capital Stock, (c) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock ofof the Company or any of its subsidiaries, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, (d) there are no contracts, commitments commitments, understandings or agreements relating to the voting, purchase or sale of Shares (i) between or among arrangements by which the Company or its Subsidiaries and any of its stockholderssubsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiaries, (iie) except as disclosed in there are no outstanding debt securities, (f) there are no agreements or arrangements under which the Company or any formsof its subsidiaries is obligated to register the sale of any of their securities under the Securities Act, reports, (g) there are no outstanding registration statements or schedules filed by a third party with comment letters from the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, SEC or any other party to effect such acceleration, cancellation regulatory agency and termination except for (h)there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the action issuance of the Company Board Preferred Stock as described in Section 2.7this Agreement.

Capitalization of the Company. The authorized capital stock of the Company consists solely of (ai) 100,000,000 70,000 shares of common Preferred Stock, of which, all 70,000 shares have been designated as redeemable preferred stock, par value $0.001 per share, of which 47,898,271 Shares were issued and outstanding which, as of the date of this Agreement, 62,373.639 shares are issued and outstanding and 1,270.927 shares have been reserved for issuance as Preferred Warrant Shares upon the exercise of the Preferred Warrants, and (bii) 10,000,000 37,000,000 shares of preferred stockCommon Stock, par value $0.001 per share, none of which 34,235,302 shares are issued and outstanding, 724,344 shares have been issued or are outstanding reserved for issuance as Common Warrant Shares upon the exercise of the Common Warrants and 351,836.9 shares have been reserved for issuance as upon the exercise of the Company Stock Options, and as of the date of this Agreement, such shares of capital stock are held of record by the Persons listed on Schedule 1.1. As All of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under shares of capital stock of the Company Stock Option Plans as restricted stock awards have been duly authorized and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Optionsvalidly issued, and (iii) no Shares were held by the Company in its treasuryare fully paid and nonassessable. Except for the foregoingCompany Stock Options, the Common Warrant Shares, the Preferred Warrant Shares, all of which are set forth on Schedule 3.2(i), and except as otherwise set forth on Schedule 3.2(ii), there are no outstanding subscriptions, options, warrants, callscommitments, subscriptions, convertible securities or other preemptive rights, deferred compensation rights, agreements, arrangements or other agreements obligating commitments of any kind to which the Company is a party relating to issuethe issuance of, transfer or sell outstanding securities convertible into or exercisable or exchangeable for, any shares of capital stock of, of the Company or other equity interests inwhich restrict the transfer of any such shares. Except as provided in the Amended and Restated Certificate of Incorporation of the Company as currently in effect (as amended, the Company. All issued “Company Charter”) and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderas otherwise set forth on Schedule 3.2(iii), there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and or any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any other securities of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7.

Capitalization of the Company. The authorized capital stock of the Company consists solely of will at the Closing consist of: (aA) 100,000,000 30,000,000 shares of common stockCommon Stock (subject to increase to 40,000,000 shares, par value $0.001 per sharesubject to shareholder approval), 10,752,492 of which shares are outstanding on the date hereof and 613,390 of which shares are reserved for issuance pursuant to outstanding options to purchase shares of Common Stock granted under the Company's stock option plans, and (B) 20,000,000 shares of Preferred Stock, of which 47,898,271 200,000 will be designated Preferred Shares, 65,000 of which Preferred Shares were will be issued and outstanding as and owned by the Purchasers, at the Closing. No other capital stock of the date Company is, or at the Closing will be, authorized and no other capital stock is, or at the Closing will be, issued. At the Closing, all of the Preferred Shares will be duly authorized and, when issued in accordance with this Agreement, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, will be validly issued, fully paid, paid and nonassessable and free entitled to the benefits of, and have the terms and conditions set forth in, the Articles of preemptive rights, rights Incorporation. Except as set forth in Item 3.4 of refusal or similar rights or limitations, and, the Disclosure Schedule and except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderas contemplated by this Agreement, there are no outstanding (A) securities or obligations of the Company convertible into or exchangeable for any capital stock of the Company, (B) warrants, rights or options to subscribe for or purchase from the Company any capital stock or any such convertible or exchangeable securities or obligations or (C) obligations of its Subsidiaries the Company to repurchaseissue such shares, redeem any such convertible or otherwise acquire any shares of capital stock ofexchangeable securities or obligations, or other equity interests inany such warrants, rights or options. No person has preemptive or similar rights with respect to the securities of the Company. Except for as set forth in Item 3.4 of the Stock Option Plans and Disclosure Schedule, the agreements executed thereunder and any support agreements entered into in connection with consummation of the Offer and transactions contemplated by the Merger at the request Agreement will not permit any holders of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale Indebtedness of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party Target to effect convert such acceleration, cancellation and termination except for the action Indebtedness to capital stock of the Company Board described in Section 2.7or the Target.

Capitalization of the Company. The (a) As of the date hereof, the authorized capital stock of the Company consists solely of (ai) 100,000,000 33,333,333 shares of common stock, par value $0.001 per shareClass A Stock, of which 47,898,271 Shares were 9,982,300 shares are currently issued and outstanding, (ii) 66,666,667 shares of Class B Stock, of which 18,604,515 are currently issued and outstanding as of the date of this Agreement, and (biii) 10,000,000 100,000,000 shares of preferred stock, no par value $0.001 per sharevalue, none of which have been issued or zero (0) shares are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were currently issued and outstanding. All outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, Company have been validly issued, and are fully paid, nonassessable and free of of, and not issued in violation of, preemptive rights, rights . As of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderdate hereof, there are 2,238,703 shares of Class A Stock and 5,303,162 shares of Class B Stock subject to issuance upon exercise of outstanding options, warrants, or other rights to purchase capital stock of the Company from the Company. Except as set forth above, there are outstanding (A) no outstanding obligations shares of capital stock or other securities of the Company, (B) no securities of the Company convertible into or exchangeable for shares of capital stock or securities of the Company, (C) no options, subscriptions, warrants, convertible securities, calls or other rights to acquire from the Company, and no obligation of the Company or any of its Subsidiaries to issue, deliver or sell, any capital stock, securities or securities convertible into or exchangeable for capital stock or securities of the Company, and (D) no equity equivalents, performance shares, interests in the ownership or earnings of the Company or other similar rights issued by the Company (the items referred to in clauses (A)-(D) are referred to herein as "COMPANY SECURITIES"). As of the date hereof, (i) there are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any shares of capital stock ofCompany Securities, (ii) no agreement, other document or other equity interests inobligation that grants or imposes on any Company Securities any right, preference, privilege or restriction with respect to the Company. Except for the Stock Option Plans and the agreements executed thereunder and transactions contemplated hereby (including, without limitation, any support agreements entered into in connection with the Offer and rights of first refusal), other than any applicable right to dissent from the Merger at the request of Parent or Purchaseras provided in Section 2.1(e) above, (iii) there are no contractsbonds, commitments debentures, notes or other indebtedness having general voting rights (or convertible into securities having such rights) of the Company issued and outstanding and (iv) the Company is not a party or bound to, and to the Company's knowledge there are no other, voting agreements, lock-up agreements or similar agreements or arrangements restricting or affecting outstanding Company Securities (excluding (x) arrangements governing 5,000,000 shares of Class B Stock pledged by affiliates of Mr. Xxxxxx xx secure obligations owed by them to DECS Trust III, a Delaware business trust, as described in the final prospectus dated March 25, 1998 relating to the voting, purchase or offering and sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7.5,000,000 DECS by

Capitalization of the Company. The (a) As of the date hereof, the authorized capital stock of the Company consists solely of (ai) 100,000,000 33,333,333 shares of common stock, par value $0.001 per shareClass A Stock, of which 47,898,271 Shares were 9,982,300 shares are currently issued and outstanding, (ii) 66,666,667 shares of Class B Stock, of which 18,604,515 are currently issued and outstanding as of the date of this Agreement, and (biii) 10,000,000 100,000,000 shares of preferred stock, no par value $0.001 per sharevalue, none of which have been issued or zero (0) shares are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were currently issued and outstanding. All outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, of the Company. All issued and outstanding Shares are duly authorized, Company have been validly issued, and are fully paid, nonassessable and free of of, and not issued in violation of, preemptive rights, rights . As of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderdate hereof, there are 2,238,703 shares of Class A Stock and 5,303,162 shares of Class B Stock subject to issuance upon exercise of outstanding options, warrants, or other rights to purchase capital stock of the Company from the Company. Except as set forth above, there are outstanding (A) no outstanding obligations shares of capital stock or other securities of the Company, (B) no securities of the Company convertible into or exchangeable for shares of capital stock or securities of the Company, (C) no options, subscriptions, warrants, convertible securities, calls or other rights to acquire from the Company, and no obligation of the Company or any of its Subsidiaries to issue, deliver or sell, any capital stock, securities or securities convertible into or exchangeable for capital stock or securities of the Company, and (D) no equity equivalents, performance shares, interests in the ownership or earnings of the Company or other similar rights issued by the Company (the items referred to in clauses (A)-(D) are referred to herein as "COMPANY SECURITIES"). As of the date hereof, (i) there are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any shares of capital stock ofCompany Securities, (ii) no agreement, other document or other equity interests inobligation that grants or imposes on any Company Securities any right, preference, privilege or restriction with respect to the Company. Except for the Stock Option Plans and the agreements executed thereunder and transactions contemplated hereby (including, without limitation, any support agreements entered into in connection with the Offer and rights of first refusal), other than any applicable right to dissent from the Merger at the request of Parent or Purchaseras provided in Section 2.1(e) above, (iii) there are no contractsbonds, commitments debentures, notes or other indebtedness having general voting rights (or convertible into securities having such rights) of the Company issued and outstanding and (iv) the Company is not a party or bound to, and to the Company's knowledge there are no other, voting agreements, lock-up agreements or similar agreements or arrangements restricting or affecting outstanding Company Securities (excluding (x) arrangements governing 5,000,000 shares of Class B Stock pledged by affiliates of Mr. Xxxxxx xx secure obligations owed by them to DECS Trust III, a Delaware business trust, as described in the final prospectus dated March 25, 1998 relating to the voting, purchase or offering and sale of Shares 5,000,000 DECS by DECS Trust III (ithe "DECS") and (y) a related share borrow arrangement between or among the Company or its Subsidiaries and any Saloxxx Xxxxx Xxxnxx xxx Mr. Xxxxxx xxxh respect to 1,000,000 shares of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed Class B Stock held by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7Mr. Xxxxxx).

Capitalization of the Company. The authorized (a) Schedule 4.2(a) sets forth a complete and accurate list, as of the date hereof, of (i) the authorized, issued and outstanding capital stock of the Company consists solely (including the number of Preferred Shares and Common Shares (aincluding the Company Restricted Shares), the names of the holders thereof and, if applicable, the portion of the Preferred Amount attributable to each such holder), (ii) 100,000,000 shares of common stock, par value $0.001 per share, the Warrants (the exercisable portions of which 47,898,271 have been previously exercised and Common Shares were issued with respect thereto), (iii) the Convertible Notes (including the Convertible Note Amount, the name of the holder of each Convertible Note and outstanding the portion of the Convertible Note Amount attributable to each such holder), and (iv) the SAFEs (including the SAFE Amount, the name of the holder of each SAFE and the portion of the SAFE Amount attributable to each such holder). Except (i) as set forth on Schedule 4.2(a) and (ii) for any changes thereto resulting solely from the exercise or conversion of Company Securities in accordance with their respective terms between the date of this Agreement, Agreement and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued or are outstanding as of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoingClosing Date, there are no shares of capital stock or other equity securities of the Company, or securities exercisable or exchangeable for equity securities of the Company (including any Company Securities), authorized, issued, reserved for issuance or outstanding and no outstanding or authorized options (including promised options), warrants, callsconvertible or exchangeable securities, subscriptions, convertible securities rights (including any preemptive rights), calls or other rights, or other agreements obligating commitments relating to the Company to issue, transfer or sell any shares of capital stock of, or other equity interests or voting interest in, the Company, to which the Company is a party or may be bound requiring the issuance, delivery or sale of shares of capital stock or other equity securities of the Company or options, warrants or securities exercisable or exchangeable for any shares of capital stock or other equity securities of the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunderExcept as set forth on Schedule 4.2(a), there are no outstanding obligations or authorized stock appreciation, phantom stock, profit participation, contingent value or similar rights with respect to the capital stock of, or other equity or voting interest in, the Company to which the Company is a party or is bound. Except as set forth on Schedule 4.2(a), the Company has no authorized or outstanding bonds, debentures, notes or other Indebtedness (1) the holders of which have the right to vote or (2) convertible into, exchangeable for, or evidencing the right to subscribe for or acquire securities having the right to vote, with the stockholders of the Company on any matter. There are no Contracts to which the Company is a party or any of its Subsidiaries by which it is bound to (x) repurchase, redeem or otherwise acquire any shares of capital stock or other equity securities of the Company or options, warrants or securities exercisable or exchangeable for shares of capital stock or other equity securities of, or other equity or voting interests in, the Company or (y) vote or dispose of any shares of capital stock or other equity interests of the Company or options, warrants or securities exercisable or exchangeable for capital stock or other equity securities of, or other equity or voting interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there There are no contractsirrevocable proxies and no voting agreements with respect to any shares of capital stock of, commitments or agreements relating other equity or voting interest in, the Company to which the Company is a party or, to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any Knowledge of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of which the Company Board described in Section 2.7is not a party.

Capitalization of the Company. The As of the date hereof, the Company's authorized capital stock consisted solely of 10,000,000 shares of Stadtlander Common Stock, of which (i) 2,004,008 shares are ixxxxx xxx outstanding, (ii) no shares are issued and held in treasury and no shares are held by subsidiaries of the Company and (iii) 237,773 shares are reserved for issuance upon the exercise of outstanding options, 162,227 shares are reserved for issuance upon the exercise of options which have not been granted and no shares are reserved for issuance for any other reason. Each outstanding share of the Company's capital stock is duly authorized and validly issued, fully paid and nonassessable, and has not been issued in violation of any preemptive or similar rights. Other than as set forth in the first sentence hereof or in Section 3.4 to the Companies Disclosure Schedule, there are no outstanding subscriptions, options, warrants, puts, calls, agreements, understandings, claims or other commitments or rights of any type relating to the issuance, sale, repurchase or transfer by the Company of any securities of the Company, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company, and neither the Company consists solely nor any subsidiary of (a) 100,000,000 the Company has any obligation of any kind to issue any additional securities or to pay for or repurchase any securities of the Company or any predecessor. Section 3.4 of the Companies' Disclosure Schedule accurately sets forth as of the date hereof the names of, and the number of shares of common each class (including the number of shares issuable upon exercise of stock options and the exercise price and vesting schedule with respect thereto) and the number of options held by, all holders of options to purchase the Company's capital stock. The Company has no agreement, par value $0.001 per sharearrangement or understandings to register any securities of the Company or any of its subsidiaries under the Securities Act of 1933, of which 47,898,271 Shares were issued as amended, or under any state securities law and outstanding has not granted registration rights to any person or entity (other than agreements, arrangements or understandings with respect to registration rights that are no longer in effect as of the date of this Agreement). Unless any Stock Options are canceled, and (b) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which have been issued expire or are outstanding as otherwise terminated prior to the Closing, the Fully Diluted Number shall be 2,337,282 plus the number of the date of this Agreement. As of the date of this Agreement, (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain shares subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no options, warrants, calls, subscriptions, convertible securities or other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company. Except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or Purchaser, there are no contracts, commitments or agreements relating to the voting, purchase or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with the SEC, among any of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board options described in Section 2.7IV,C. of the Forster Agreement if any such options are granted.

Capitalization of the Company. The authorized capital stock of the Company consists solely of One Hundred Million (a100,000,000) 100,000,000 shares of common stock, par value $0.001 per share, of which 47,898,271 Shares were issued Common Stock and outstanding as of the date of this Agreement, and Fifteen Million (b15,000,000) 10,000,000 shares of preferred stock, par value $0.001 per shareshare (the “Preferred Stock”), none of which have been Forty-Three Million Two Hundred Forty-Nine Seven Hundred Twenty-Six (43,249,726) shares of Common Stock are issued or are and outstanding as of the date hereof, and zero (0) shares of this AgreementPreferred Stock are issued and outstanding as of the date hereof. All of such outstanding shares have been validly issued and are fully paid and nonassessable, have been issued in compliance with all foreign, federal and state securities laws and none of such outstanding shares were issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. As of the date Effective Date, no shares of the Company’s capital stock are subject to preemptive rights or any other similar rights or any Claims or Encumbrances suffered or permitted by the Company. The Common Stock is currently quoted on the OTC Markets under the trading symbol “DIXI”. The Company has received no notice, either oral or written, with respect to the continued eligibility of the Common Stock for quotation on the Principal Trading Market, and the Company has maintained all requirements on its part for the continuation of such quotation. Except as disclosed in the “Public Documents” (as hereinafter defined), as disclosed by management of the Company to the Buyer and except for the Securities to be issued pursuant to this Agreement, as of the date hereof: (i) 3,794,346 Shares were issued and outstanding under the Company Stock Option Plans as restricted stock awards and remain subject to vesting restrictions, (ii) 2,869,061 Shares were subject to outstanding Options, and (iii) no Shares were held by the Company in its treasury. Except for the foregoing, there are no outstanding options, warrants, callsscrip, subscriptionsrights to subscribe to, convertible calls or commitments of any character whatsoever relating to, or securities or other rightsrights convertible into, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations, and, except for the repurchase of Shares in connection with the vesting of Restricted Shares under the Stock Option Plans and the agreements executed thereunder, there are no outstanding obligations of the Company or any of its Subsidiaries, or Contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to repurchaseissue additional shares of capital stock of the Company or any of its Subsidiaries, redeem or otherwise acquire options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock ofof the Company or any of its Subsidiaries; (ii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other Contracts or instruments evidencing indebtedness of the Company or any of its Subsidiaries, or other equity interests inby which the Company or any of its Subsidiaries is or may become bound; (iii) there are no outstanding registration statements with respect to the Company or any of its securities; (iv) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except pursuant to this Agreement); (v) there are no financing statements securing obligations filed in connection with the Company or any of its Assets; (vi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any related agreement or the consummation of the transactions described herein or therein; and (vii) there are no outstanding securities or instruments of the Company which contain any redemption or similar provisions, and there are no Contracts by which the Company is or may become bound to redeem a security of the Company. the Company has furnished to the Buyer true, complete and correct copies of: (I) the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof; and (II) the Company’s Bylaws, as in effect on the date hereof (together, the Company“Organizational Documents”). Except for the Stock Option Plans and Organizational Documents or as disclosed in the agreements executed thereunder and any support agreements entered into in connection with the Offer and the Merger at the request of Parent or PurchaserPublic Documents, there are no contractsother shareholder agreements, commitments voting agreements or agreements relating to the votingother Contracts of any nature or kind that restrict, purchase limit or sale of Shares (i) between or among the Company or its Subsidiaries and any of its stockholders, or (ii) except as disclosed in any forms, reports, statements or schedules filed by a third party with manner impose Obligations on the SEC, among any governance of the Company’s stockholders or between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements executed thereunder permit the acceleration and cancellation of outstanding Options and acceleration of Restricted Shares as well as the termination of the Stock Option Plans as contemplated by Section 2.7 of this Agreement, and do not require the consent or approval of the holders of the outstanding Options or Restricted Shares, the Company’s stockholders, or any other party to effect such acceleration, cancellation and termination except for the action of the Company Board described in Section 2.7.