Capitalization. [Schedule 4.3] sets forth for each Target Entity its jurisdictions of incorporation or formation, the number (or ownership percentage, as applicable) of issued and authorized Equity Securities and the owners of all of such outstanding Equity Securities. No other Person owns or holds the right to acquire any stock, partnership interest, joint venture interest or other equity interest in any Target Entity. Sellers own, directly or indirectly, of record and beneficially, # all of the Equity Securities in each of their respective Subsidiaries (other than Imsamet and Beck Aluminum), # 70% of the Equity Securities of Imsamet and # 49% of the Equity Securities of Beck Aluminum, in each case, free and clear of all Liens (except Permitted Liens) and Liabilities, and all such Equity Securities are validly issued, fully paid and non‑assessable (to the extent such concept is applicable to such Equity Securities). There are no outstanding contractual obligations of Sellers or any Target Entities requiring the purchase, redemption or other acquisition of any equity interest in any Target Entity or requiring Sellers or any Target Entity to provide funds to, make any investment (in the form of a loan, capital contribution or otherwise) in, provide any guarantee with respect to, or assume, endorse or otherwise become responsible for the obligations of any other Target Entity except as set forth in [Schedule 4.3].

Capitalization. As of the date hereof, the authorized capital stock of the Company, and shares issued and outstanding, is as set forth in the Company’s most recent report filed with the SEC. 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 (other than the Note and other previously issued convertible promissory notes) exercisable for, or convertible into or exchangeable for shares of Common Stock and 26,422,764 shares are reserved for issuance upon conversion of the Note. 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 shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. Except as disclosed in the SEC Documents, as of the effective date of this Agreement, # there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock 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 issue additional shares of capital stock of the Company or any of its Subsidiaries, # there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act and # there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Note, Commitment Shares, or the Conversion Shares. The Company has filed in its SEC Documents true and correct copies of the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto. The Company shall provide the Buyer with a written update of this representation signed by the Company’s Chief Executive on behalf of the Company as of the Closing Date.

Capitalization. The Member’s interest in the Company, including the Member’s interest, if any, in the capital, income, gains, losses, deductions and expenses of the Company, and the right to vote, if any, on matters affecting the Company or the Member’s interest therein, as provided by the Act or this Agreement, shall be represented by units of limited liability company interest (each, a “Unit”). All Units issued hereunder shall be issued in uncertificated form unless otherwise determined by the Member. The initial Units issued to the Member are set forth on the attached [Schedule 1], which schedule shall be amended from time to time in accordance with the terms of this Agreement.

The authorized capital stock of the Company as of the date of this Agreement consists of 3,500,000 shares of Common Stock, of which, as of December 15, 2016, 2,484,211 shares were issued and outstanding, 140,000 shares of Series A Preferred Stock, par value $0.01 per share, of which 105,303 shares were issued and outstanding as of September 30, 2016, and 360,000 shares of Series B Preferred Stock, of which 244,263 shares were issued and outstanding as of December 31, 2016 . All of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable, except as may be provided by Section 630 of the New York Business Corporation Law, and are free from preemptive rights.

Capitalization. The capitalization of the Company is disclosed in the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2016. Except as set forth on [schedule 3.1(g)], the Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as set forth on [Schedule 3.1(g)], no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities and as set forth on [Schedule 3.1(g)], there are no outstanding options, warrants, scrip 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 the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. Except as disclosed in [Schedule 3.1(g)], the issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. Except as set forth in [Schedule 3.1(g)], the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. Except as set forth in [Schedule 3.1(g)], there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.

Subsidiary Capitalization. All the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and, except to the extent set forth in the Registration Statement, the Prospectus and the Prospectus Supplement, are owned by the Company directly or indirectly through one or more wholly-owned Subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.

In the event of a change in capitalization, the Committee shall make appropriate adjustments in accordance with [Section 4.3] of the Plan to reflect the change in capitalization, provided that any such additional Shares or additional or different shares or securities reflected in any such adjustment shall remain subject to the restrictions in this Agreement.

Adjustment: The foregoing numbers of shares subject to Initial Awards and Annual Awards shall be automatically adjusted as provided in [Section 3(b)] of the Company’s 2021 Stock Option and Incentive Plan related to changes in capitalization.

Investment Adjustment. The investment income, gains and losses shall be determined for the Accounts in accordance with the following:

Adjustment Principle. In the event that the Board determines that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, share split, reverse share split, subdivision, consolidation or reduction of capital, reorganization, merger, scheme of arrangement, split-up, spin-off or combination involving the Company or repurchase or exchange of Shares or other rights to purchase Shares or other securities of the Company, or other similar corporate transaction or event affects the Shares such that any adjustment is determined by the Board to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Board shall, in such manner as it may deem equitable, adjust any or all of # the number and type of Shares (or other securities or property of the Company or any Person that is a party to a Reorganization Transaction with the Company) with respect to which Awards may be granted, # the number and type of Shares (or other securities or property of the Company or any Person that is a party to a Reorganization Transaction with the Company) subject to outstanding Awards, and # the grant or exercise price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award or the substitution of other property for Shares subject to an outstanding Award; provided, that the number of Shares subject to any Award denominated in Shares shall always be a whole number.