Common use of California Permit; Fairness Hearing Clause in Contracts

California Permit; Fairness Hearing. (a) MRV shall use all reasonable efforts to file as soon as practicable after the date hereof an application intended to satisfy the requirements of the California Corporations Code with the California Department of Corporations and request a hearing be held as soon as practicable after the date hereof to apply to obtain a California Permit from the Commissioner so that the issuance of MRV Common Stock and the Deferred Consideration Payment in the First Merger and the shares of MRV Common Stock issued in connection with the dividend paid in accordance with Section 1.14 shall be exempt from registration under the Securities Act, pursuant to the exemption provided by Section 3(a)(10) thereof. Each of MRV, Submerger and Fiberxon shall reasonably cooperate with each other in the preparation and submission of any and all documents and materials required by the California Department of Corporations in connection therewith. Each of MRV and Fiberxon shall be solely responsible for any statement, information or omission in such materials relating to it or its affiliates based upon written information furnished by it. MRV will respond to any comments from the California Department of Corporations and work with Fiberxon in good faith and use all reasonable efforts to have the California Permit granted as soon as practicable after such filing; provided, however, that no party shall be required to modify any of the terms of this Agreement or the First Merger, or the transactions contemplated hereby, in order to obtain the California Permit. Additionally, Fiberxon shall prepare for filing with the California Permit application, with the cooperation of MRV, a related information statement or other disclosure document for the offer and issuance of the shares of MRV Common Stock to be received by the holders of Fiberxon Capital Stock in the First Merger (the “Information Statement”). MRV shall notify Fiberxon promptly upon the receipt of any comments from the California Department of Corporations or its staff or any other governmental officials and of any request by the California Department of Corporations or its staff or any other governmental officials for amendments or supplements to the application for the California Permit or any filing pursuant to Section 5.2 or for additional information and shall supply Fiberxon with copies of all such correspondence. MRV shall provide Fiberxon with a reasonable opportunity to review and comment on any and all correspondence between MRV or any of its representatives, on the one hand, and the California Department of Corporations or its staff or any other governmental officials, on the other hand, with respect to the application for the California Permit or any filing pursuant to Section 5.8 before such correspondence is submitted and will provide Fiberxon with copies of any such correspondence. Each party shall if practicable consult with the other party prior to contacting the California Department of Corporations regarding the Mergers to provide the other party with a reasonable opportunity to consult on the substance of such communications. MRV shall use all reasonable efforts to cause all documents it is responsible for filing with the California Department of Corporations or other regulatory authorities under this Section 5.2 to comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. MRV shall provide Fiberxon with a reasonable opportunity to review and comment on any amendment or supplement to the application for the California Permit prior to filing such with the California Department of Corporations, and will provide a copy of all filings made with the California Department of Corporations. Each of MRV and Fiberxon agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in its respective reasonable judgment or the reasonable judgment of its respective counsel, may be required or appropriate under the Fairness Hearing Law and applicable Legal Requirements for inclusion in the Information Statement or in the application for the California Permit, or in any amendments or supplements to either of them, and to cause its respective counsel and auditors to cooperate with the other’s counsel and auditors in preparation of the Information Statement (with respective auditors providing consent if necessary). Anything to the contrary contained herein notwithstanding, neither Fiberxon nor MRV shall include in the application for the California Permit or the Information Statement any information with respect to the other or its affiliates, the form and content of which shall not have been approved by such other party prior to such inclusion. As promptly as practical after the date of this Agreement, MRV shall prepare and make such filings as are required under applicable blue sky laws relating to the transactions contemplated by this Agreement. Fiberxon shall use its reasonable efforts to assist MRV as may be necessary to comply with the securities and blue sky laws relating to the transactions contemplated by this Agreement. (b) In the event that the Commissioner denies the California Permit or MRV does not receive the California Permit within ninety (90) days following the execution of this Agreement, MRV and Fiberxon shall promptly negotiate in good faith a process pursuant to which (i) the securities to be issued pursuant to this Agreement may be issued under another exemption to the Securities Act, (ii) MRV shall use its reasonable best efforts to register the securities to be issued pursuant to such exemption such that upon effectiveness of such registration the Fiberxon Stockholders would own freely tradeable securities, and (iii) proceed with the intended issuances in compliance with such exemptions.

California Permit; Fairness Hearing. (a) MRV Parent and the Company shall use all their reasonable best efforts to file as soon as practicable after file, within seven (7) Business Days following the date hereof an application intended to satisfy the requirements execution of the California Corporations Code with the California Department of Corporations this Agreement, all necessary documents, and request a hearing be held as soon as practicable after the date hereof Parent shall use its reasonable best efforts to apply to obtain a California Permit permit (a "CALIFORNIA PERMIT") from the Commissioner of Corporations of the State of California (after a hearing before such Commissioner) pursuant to Sections 25121 and 25142 of the California Corporate Securities Law of 1968 (the "FAIRNESS HEARING LAW"), so that the issuance of MRV Parent Common Stock and the Deferred Consideration Payment in the First Merger and the shares of MRV Common Stock issued in connection with the dividend paid in accordance with Section 1.14 shall be exempt from registration under the Securities Act, pursuant to by virtue of the exemption provided by Section 3(a)(10) thereof. Each , and the Company shall prepare, with the cooperation of MRVParent, Submerger and Fiberxon shall reasonably cooperate a related information statement or other disclosure document (the "INFORMATION STATEMENT") for filing with each other in the preparation and submission of any and all documents and materials required by the California Department of Corporations Permit application. The Company shall cooperate with, and provide information to, Parent in connection therewithwith Parent's application for the California Permit. Each of MRV Company and Fiberxon shall be solely responsible for any statement, information or omission in such materials relating to it or its affiliates based upon written information furnished by it. MRV Parent will respond to any comments from the California Department of Corporations and work with Fiberxon together in good faith and use all their reasonable best efforts to have the California Permit granted as soon as practicable after such filing; provided, howeverPROVIDED, HOWEVER, that no party shall be required to modify any of the terms of this Agreement or the First Merger, or the transactions contemplated herebyhereby or thereby, in order to obtain the California Permit. Additionally, Fiberxon shall prepare for filing with the California Permit application, with the cooperation Each of MRV, a related information statement or other disclosure document for the offer and issuance of the shares of MRV Common Stock to be received by the holders of Fiberxon Capital Stock in the First Merger (the “Information Statement”). MRV shall notify Fiberxon promptly upon the receipt of any comments from the California Department of Corporations or its staff or any other governmental officials and of any request by the California Department of Corporations or its staff or any other governmental officials for amendments or supplements to the application for the California Permit or any filing pursuant to Section 5.2 or for additional information and shall supply Fiberxon with copies of all such correspondence. MRV shall provide Fiberxon with a reasonable opportunity to review and comment on any and all correspondence between MRV or any of its representatives, on the one hand, Parent and the California Department of Corporations or its staff or any other governmental officials, on the other hand, with respect to the application for the California Permit or any filing pursuant to Section 5.8 before such correspondence is submitted and will provide Fiberxon with copies of any such correspondence. Each party shall if practicable consult with the other party prior to contacting the California Department of Corporations regarding the Mergers to provide the other party with a reasonable opportunity to consult on the substance of such communications. MRV shall use all reasonable efforts to cause all documents it is responsible for filing with the California Department of Corporations or other regulatory authorities under this Section 5.2 to comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. MRV shall provide Fiberxon with a reasonable opportunity to review and comment on any amendment or supplement to the application for the California Permit prior to filing such with the California Department of Corporations, and will provide a copy of all filings made with the California Department of Corporations. Each of MRV and Fiberxon Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in its respective reasonable judgment or the reasonable judgment of Parent or its respective counsel, may be required or appropriate under the Fairness Hearing Law and applicable Legal Requirements securities laws for inclusion in the Information Statement or in the application for the California PermitStatement, or in any -38- amendments or supplements to either of themthereto, and to cause its respective counsel and auditors to cooperate with the other’s 's counsel and auditors in preparation of the Information Statement (with respective auditors providing consent if necessary)Statement. Anything to the contrary contained herein notwithstanding, neither Fiberxon nor MRV the Company shall not include in the application for the California Permit or the Information Statement any information with respect to the other Parent or its affiliatesaffiliates or associates, the form and content of which shall not have been approved by such other party Parent prior to such inclusion. As promptly as practical after the date of this Agreement, MRV Parent and the Company shall prepare and make such filings as are required under applicable blue sky laws relating to the transactions contemplated by this Agreement. Fiberxon The Company shall use its reasonable best efforts to assist MRV Parent as may be necessary to comply with the securities and blue sky laws relating to the transactions contemplated by this Agreement. (b) In the event that the Commissioner denies the California Permit or MRV does not receive the California Permit within ninety (90) days following the execution of this Agreement, MRV and Fiberxon shall promptly negotiate in good faith a process pursuant to which (i) the securities to be issued pursuant to this Agreement may be issued under another exemption to the Securities Act, (ii) MRV shall use its reasonable best efforts to register the securities to be issued pursuant to such exemption such that upon effectiveness of such registration the Fiberxon Stockholders would own freely tradeable securities, and (iii) proceed with the intended issuances in compliance with such exemptions.

California Permit; Fairness Hearing. (a) MRV SumTotal shall use all its commercially reasonable efforts efforts, within seven (7) Business Days following the execution of this Agreement, to file as soon as practicable after the date hereof an application intended to satisfy the requirements of the California Corporations Code with the California Department of Corporations and request a hearing be held as soon as practicable after the date hereof to apply to obtain a California Permit from the Commissioner of Corporations of the State of California so that the issuance of MRV SumTotal Common Stock and the Deferred Consideration Payment in the First Merger and the shares of MRV Common Stock issued in connection with the dividend paid in accordance with Section 1.14 shall be exempt from registration under the Securities Act, pursuant to the exemption provided by Section 3(a)(10) thereof. Each of MRVSumTotal, Submerger Merger Sub and Fiberxon Pathlore shall reasonably cooperate with each other in the preparation and submission of any and all documents and materials required by the California Department of Corporations in connection therewith. Each of MRV SumTotal and Fiberxon Pathlore shall be solely responsible for any statement, information or omission in such materials relating to it or its affiliates based upon written information furnished by it. MRV Pathlore and SumTotal will respond to any comments from the California Department of Corporations and work with Fiberxon together in good faith and use all reasonable efforts to have the California Permit granted as soon as practicable after such filing; provided, however, that no party shall be required to modify any of the terms of this Agreement or the First MergerMergers, or the transactions contemplated hereby, in order to obtain the California Permit. Additionally, Fiberxon Pathlore shall prepare for filing with the California Permit application, with the cooperation of MRVSumTotal, a related information statement or other disclosure document for the offer and issuance of the shares of MRV SumTotal Common Stock to be received by the holders of Fiberxon Capital Pathlore Common Stock in the First Merger (the “Information Statement”). MRV SumTotal shall notify Fiberxon Pathlore promptly upon the receipt of any comments from the California Department of Corporations or its staff or any other governmental officials and of any request by the California Department of Corporations or its staff or any other governmental officials for amendments or supplements to the application for the California Permit or any filing pursuant to Section 5.2 5.10 or for additional information and shall supply Fiberxon Pathlore with copies of all such correspondence. MRV SumTotal shall provide Fiberxon Pathlore with a reasonable opportunity to review and comment on any and all correspondence between MRV SumTotal or any of its representatives, on the one hand, and the California Department of Corporations or its staff or any other governmental officials, on the other hand, with respect to the application for the California Permit or any filing pursuant to Section 5.8 5.10 before such correspondence is submitted and will provide Fiberxon Pathlore with copies of any such correspondence. Each party shall if practicable consult with the other party prior to contacting the California Department of Corporations regarding the Mergers to provide the other party with a reasonable opportunity to consult on the substance of such communications. MRV SumTotal shall use all reasonable efforts to cause all documents it is responsible for filing with the California Department of Corporations or other regulatory authorities under this Section 5.2 to comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. MRV SumTotal shall provide Fiberxon Pathlore with a reasonable opportunity to review and comment on any amendment or supplement to the application for the California Permit prior to filing such with the California Department of Corporations, and will provide a copy of all filings made with the California Department of Corporations. Each of MRV SumTotal and Fiberxon Pathlore agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in its respective reasonable judgment or the reasonable judgment of its respective counsel, may be required or appropriate under the Fairness Hearing Law and applicable Legal Requirements Laws for inclusion in the Information Statement or in the application for the California Permit, or in any amendments or supplements to either of them, and to cause its respective counsel and auditors to cooperate with the other’s counsel and auditors in preparation of the Information Statement (with respective auditors providing consent if necessary). Anything to the contrary contained herein notwithstanding, neither Fiberxon Pathlore nor MRV SumTotal shall include in the application for the California Permit or the Information Statement any information with respect to the other or its affiliates, the form and content of which shall not have been approved by such other party prior to such inclusion. As promptly as practical after the date of this Agreement, MRV SumTotal shall prepare and make such filings as are required under applicable blue sky laws relating to the transactions contemplated by this Agreement. Fiberxon Pathlore shall use its reasonable efforts to assist MRV SumTotal as may be necessary to comply with the securities and blue sky laws Laws relating to the transactions contemplated by this Agreement. (b) In the event that the Commissioner denies the California Permit or MRV does not receive the California Permit within ninety (90) days following the execution of this Agreement, MRV and Fiberxon shall promptly negotiate in good faith a process pursuant to which (i) the securities to be issued pursuant to this Agreement may be issued under another exemption to the Securities Act, (ii) MRV shall use its reasonable best efforts to register the securities to be issued pursuant to such exemption such that upon effectiveness of such registration the Fiberxon Stockholders would own freely tradeable securities, and (iii) proceed with the intended issuances in compliance with such exemptions.

California Permit; Fairness Hearing. (a) MRV Parent and the Company shall use all their commercially reasonable efforts to file as soon as practicable after file, subject to the date hereof an application intended availability of all necessary information, by the later to satisfy occur of (x) seven (7) Business Days following the requirements execution of this Agreement and (y) three (3) Business Days following the California Corporations Code filing of Parent’s Form 10-K with the California Department of Corporations SEC for the fiscal year ended December 31, 2006, all necessary documents, and request a hearing be held as soon as practicable after the date hereof Parent shall use its commercially reasonable efforts to apply to obtain a permit (a “California Permit Permit”) from the Commissioner of Corporations of the State of California (after a hearing before such Commissioner) pursuant to Sections 25121 and 25142 of the California Corporate Securities Law of 1968 (the “Fairness Hearing Law”), so that the issuance of MRV Parent Common Stock and the Deferred Consideration Payment in the First Merger and the shares of MRV Common Stock issued in connection with the dividend paid in accordance with Section 1.14 shall be exempt from registration under the Securities Act, pursuant to the exemption provided by Section 3(a)(10) thereof. Each , and the Company shall prepare, with the cooperation of MRVParent, Submerger and Fiberxon shall reasonably cooperate a related information statement or other disclosure document (the “Information Statement”) for filing with each other in the preparation and submission of any and all documents and materials required by the California Department of Corporations Permit application. The Company shall cooperate with, and provide information to, Parent in connection therewithwith Parent’s application for the California Permit. Each of MRV The Company and Fiberxon shall be solely responsible for any statement, information or omission in such materials relating to it or its affiliates based upon written information furnished by it. MRV Parent will respond to any comments from the California Department of Corporations and work with Fiberxon together in good faith and use all their commercially reasonable efforts to have the California Permit granted as soon as practicable after such filing; provided, however, that no party shall be required to modify any of the terms of this Agreement or the First Merger, or the transactions contemplated herebyhereby or thereby, in order to obtain the California Permit. Additionally, Fiberxon shall prepare for filing with the California Permit application, with the cooperation Each of MRV, a related information statement or other disclosure document for the offer and issuance of the shares of MRV Common Stock to be received by the holders of Fiberxon Capital Stock in the First Merger (the “Information Statement”). MRV shall notify Fiberxon promptly upon the receipt of any comments from the California Department of Corporations or its staff or any other governmental officials and of any request by the California Department of Corporations or its staff or any other governmental officials for amendments or supplements to the application for the California Permit or any filing pursuant to Section 5.2 or for additional information and shall supply Fiberxon with copies of all such correspondence. MRV shall provide Fiberxon with a reasonable opportunity to review and comment on any and all correspondence between MRV or any of its representatives, on the one hand, Parent and the California Department of Corporations or its staff or any other governmental officials, on the other hand, with respect to the application for the California Permit or any filing pursuant to Section 5.8 before such correspondence is submitted and will provide Fiberxon with copies of any such correspondence. Each party shall if practicable consult with the other party prior to contacting the California Department of Corporations regarding the Mergers to provide the other party with a reasonable opportunity to consult on the substance of such communications. MRV shall use all reasonable efforts to cause all documents it is responsible for filing with the California Department of Corporations or other regulatory authorities under this Section 5.2 to comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. MRV shall provide Fiberxon with a reasonable opportunity to review and comment on any amendment or supplement to the application for the California Permit prior to filing such with the California Department of Corporations, and will provide a copy of all filings made with the California Department of Corporations. Each of MRV and Fiberxon Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in its respective reasonable judgment or the reasonable judgment of Parent or its respective counsel, may be required or appropriate under the Fairness Hearing Law and applicable Legal Requirements securities Laws for inclusion in the Information Statement or in the application for the California PermitStatement, or in any amendments or supplements to either of themthereto, and to cause its respective counsel and auditors to cooperate with the other’s counsel and auditors in preparation of the Information Statement (with respective auditors providing consent if necessary)Statement. Anything to the contrary contained herein notwithstanding, neither Fiberxon nor MRV the Company shall not include in the application for the California Permit or the Information Statement any information with respect to the other Parent or its affiliatesAffiliates, the form and content of which shall not have been approved by such other party Parent prior to such inclusion. As promptly as practical after the date of this Agreement, MRV Parent and the Company shall prepare and make such filings as are required under applicable blue sky laws relating to the transactions contemplated by this Agreement. Fiberxon The Company shall use its commercially reasonable efforts to assist MRV Parent as may be necessary to comply with the securities and blue sky laws Laws relating to the transactions contemplated by this Agreement. (b) In the event that the Commissioner denies the California Permit or MRV does not receive the California Permit within ninety (90) days following the execution of this Agreement, MRV and Fiberxon shall promptly negotiate in good faith a process pursuant to which (i) the securities to be issued pursuant to this Agreement may be issued under another exemption to the Securities Act, (ii) MRV shall use its reasonable best efforts to register the securities to be issued pursuant to such exemption such that upon effectiveness of such registration the Fiberxon Stockholders would own freely tradeable securities, and (iii) proceed with the intended issuances in compliance with such exemptions.

California Permit; Fairness Hearing. (a) MRV Parent and the Company shall use all their commercially reasonable efforts to file as soon as practicable after file, within seven (7) Business Days following the date hereof an application intended to satisfy the requirements execution of the California Corporations Code with the California Department of Corporations this Agreement, all necessary documents, and request a hearing be held as soon as practicable after the date hereof Parent shall use its commercially reasonable efforts to apply to obtain a permit (a “California Permit Permit”) from the Commissioner of Corporations of the State of California (after a hearing before such Commissioner) pursuant to Sections 25121 and 25142 of the California Corporate Securities Law of 1968 (the “Fairness Hearing Law”), so that the issuance of MRV Parent Common Stock and the Deferred Consideration Payment in the First Merger and the shares of MRV Common Stock issued in connection with the dividend paid in accordance with Section 1.14 shall be exempt from registration under the Securities Act, pursuant to the exemption provided by Section 3(a)(10) thereof. Each , and the Company shall prepare, with the cooperation of MRVParent, Submerger and Fiberxon shall reasonably cooperate a related information statement or other disclosure document (the “Information Statement”) for filing with each other in the preparation and submission of any and all documents and materials required by the California Department of Corporations Permit application. The Company shall cooperate with, and provide information to, Parent in connection therewithwith Parent’s application for the California Permit. Each of MRV The Company and Fiberxon shall be solely responsible for any statement, information or omission in such materials relating to it or its affiliates based upon written information furnished by it. MRV Parent will respond to any comments from the California Department of Corporations and work with Fiberxon together in good faith and use all their commercially reasonable efforts to have the California Permit granted as soon as practicable after such filing; provided, however, that no party shall be required to modify any of the terms of this Agreement or the First Merger, or the transactions contemplated herebyhereby or thereby, in order to obtain the California Permit. Additionally, Fiberxon shall prepare for filing with the California Permit application, with the cooperation Each of MRV, a related information statement or other disclosure document for the offer and issuance of the shares of MRV Common Stock to be received by the holders of Fiberxon Capital Stock in the First Merger (the “Information Statement”). MRV shall notify Fiberxon promptly upon the receipt of any comments from the California Department of Corporations or its staff or any other governmental officials and of any request by the California Department of Corporations or its staff or any other governmental officials for amendments or supplements to the application for the California Permit or any filing pursuant to Section 5.2 or for additional information and shall supply Fiberxon with copies of all such correspondence. MRV shall provide Fiberxon with a reasonable opportunity to review and comment on any and all correspondence between MRV or any of its representatives, on the one hand, Parent and the California Department of Corporations or its staff or any other governmental officials, on the other hand, with respect to the application for the California Permit or any filing pursuant to Section 5.8 before such correspondence is submitted and will provide Fiberxon with copies of any such correspondence. Each party shall if practicable consult with the other party prior to contacting the California Department of Corporations regarding the Mergers to provide the other party with a reasonable opportunity to consult on the substance of such communications. MRV shall use all reasonable efforts to cause all documents it is responsible for filing with the California Department of Corporations or other regulatory authorities under this Section 5.2 to comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. MRV shall provide Fiberxon with a reasonable opportunity to review and comment on any amendment or supplement to the application for the California Permit prior to filing such with the California Department of Corporations, and will provide a copy of all filings made with the California Department of Corporations. Each of MRV and Fiberxon Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in its respective reasonable judgment or the reasonable judgment of Parent or its respective counsel, may be required or appropriate under the Fairness Hearing Law and applicable Legal Requirements securities Laws for inclusion in the Information Statement or in the application for the California PermitStatement, or in any amendments or supplements to either of themthereto, and to cause its respective counsel and auditors to cooperate with the other’s counsel and auditors in preparation of the Information Statement (with respective auditors providing consent if necessary)Statement. Anything to the contrary contained herein notwithstanding, neither Fiberxon nor MRV the Company shall not include in the application for the California Permit or the Information Statement any information with respect to the other Parent or its affiliatesAffiliates, the form and content of which shall not have been approved by such other party Parent prior to such inclusion. As promptly as practical after the date of this Agreement, MRV Parent and the Company shall prepare and make such filings as are required under applicable blue sky laws relating to the transactions contemplated by this Agreement. Fiberxon The Company shall use its commercially reasonable efforts to assist MRV Parent as may be necessary to comply with the securities and blue sky laws Laws relating to the transactions contemplated by this Agreement. (b) In the event that the Commissioner denies the California Permit or MRV does not receive the California Permit within ninety (90) days following the execution of this Agreement, MRV and Fiberxon shall promptly negotiate in good faith a process pursuant to which (i) the securities to be issued pursuant to this Agreement may be issued under another exemption to the Securities Act, (ii) MRV shall use its reasonable best efforts to register the securities to be issued pursuant to such exemption such that upon effectiveness of such registration the Fiberxon Stockholders would own freely tradeable securities, and (iii) proceed with the intended issuances in compliance with such exemptions.