Common use of Meeting of Stockholders; Proxy Statement Clause in Contracts

Meeting of Stockholders; Proxy Statement. (a) The Company shall take all action necessary in accordance with Applicable Law and the Certificate of Incorporation and Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") as promptly as practicable after the date hereof, but in -------------------- no event later than the Initial Increase Date, to obtain the Required Stockholder Approval. The Board of Directors shall (i) recommend to the Company's stockholders that they vote in favor of the adoption and approval of a proposal that the stockholders of the Company approve the issuance of the Permanent Preferred Shares issuable upon conversion of the Bridge Preferred Shares and the issuance of the shares of Common Stock issuable upon conversion of the Permanent Preferred Shares (the "Stockholder Proposal"), (ii) use its -------------------- best efforts to solicit from the Company's stockholders proxies in favor of the Stockholder Proposal, and (iii) take all other action reasonably necessary to secure the Required Stockholder Approval. If the Required Stockholder Approval is not obtained as set forth above prior to the Initial Increase Date, the Company shall submit a proposal for the Required Stockholder Approval at the next two annual meetings of the stockholders of the Company and at two special meetings of the stockholders of the Company convened at the request of the holders of the Bridge Preferred Shares. The Purchasers agree to attend in person or by proxy, and to vote all shares of Bridge Preferred Stock or Common Stock owned by the Purchasers in favor of the Stockholder Proposal at any special or annual meeting of the Company's stockholders at which the Stockholder Proposal is presented for approval. (b) As promptly as practicable after the date hereof, the Company shall take or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to (i) prepare and file with the Commission, no later than January 15, 2002, any documents or materials, including, but not limited to, the preliminary Proxy Materials, pertaining to the Stockholders Meeting and the Stockholder Proposal and (ii) have the Proxy Materials cleared by the Commission (including with respect to clauses (i) and (ii) by consulting with the Purchasers and responding promptly to any comments from the Commission). The Proxy Materials shall contain the recommendation of the Board of Directors that stockholders of the Company vote in favor of the adoption and approval of the Stockholder Proposal and all other matters necessary to effectuate the transactions contemplated hereunder. The Company shall notify the Purchasers promptly of the receipt of any comments on, or any requests for amendments or supplements to, the Proxy Materials by the Commission, and the Company shall supply the Purchasers with copies of all written correspondence between the Company and its representatives, on the one hand, and the Commission or members of its staff, on the other, with respect to the Proxy Materials. The Company, after consultation with the Purchasers, shall use its reasonable best efforts to respond promptly to any comments made by the Commission with respect to the Proxy Materials. The Company and the Purchasers shall cooperate with each other in preparing the Proxy Materials, and the Company and the Purchasers shall each use its reasonable best efforts to obtain and furnish the information required to be included in the Proxy Materials. The Company and the Purchasers each agrees promptly to correct any information provided by it for use in the Proxy Materials if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Proxy Materials, as so corrected, to be filed with the Commission and to be disseminated promptly to holders of shares of the Common Stock, in each case as and to the extent required by Applicable Law. (c) The information contained in the Proxy Materials (other than information with respect to (i) the Purchasers or any of their Affiliates and (ii) the holders of notes pursuant to the Note Purchase Agreement which, in either case, shall have been supplied in writing by them or any of their authorized representatives expressly for use in or in preparing the Proxy Materials) will not, at the date of mailing to the Company's stockholders or at the date of the Stockholders Meeting, contain any statement which, at the time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact required to be stated therein or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Stockholders Meeting. The Proxy Materials will comply as to form in all material respects with the Exchange Act and the rules and regulations of the SEC thereunder. The Company shall deliver or cause to be delivered to the Purchasers a draft of the Proxy Materials no later than January 10, 2002.

Meeting of Stockholders; Proxy Statement. Certificate ----------------------------------------------------- Amendments. ---------- (a) The Company shall take all action necessary in accordance with Applicable Law and the Certificate of Incorporation and Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders, which meeting may be the Company's annual meeting of stockholders (the "Stockholders Meeting") as promptly as practicable after the date hereofhereof to consider and vote upon the adoption and approval of the transaction as contemplated hereunder (including, but in -------------------- no event later than without limitation, the Initial Increase Date, Certificate Amendments and proposals (the "Ancillary Proposals") to obtain amend the Required Stockholder Approval. The Certificate of Incorporation to (i) delete ------------------- the classification of the Company's Board of Directors set forth in Article Seventh of the Certificate of Incorporation and (ii) to delete the cumulative voting for directors of the Company as set forth in Article Ninth of the Certificate of Incorporation). The stockholder vote required for the adoption and approval of the transactions contemplated hereunder shall be the vote or votes required by Applicable Law, the Certificate of Incorporation and the rules of the New York Stock Exchange, as represented by the Company in Section 4.6. Except as provided in Section 6.1(b) below, the board of directors of the Company shall (i) recommend to the Company's stockholders that they vote in favor of the adoption and approval of a proposal that all matters necessary to effectuate the stockholders of the Company approve the issuance of the Permanent Preferred Shares issuable upon conversion of the Bridge Preferred Shares and the issuance of the shares of Common Stock issuable upon conversion of the Permanent Preferred Shares (the "Stockholder Proposal")transactions contemplated hereunder, (ii) use its -------------------- reasonable best efforts to solicit from the Company's stockholders proxies in favor of the Stockholder Proposalsuch adoption and approval, and (iii) take all other action reasonably necessary to secure the Required Stockholder Approval. If the Required Stockholder Approval is not obtained as set forth above prior to the Initial Increase Date, the Company shall submit a proposal for the Required Stockholder Approval at the next two annual meetings of the stockholders of the Company and at two special meetings of the stockholders of the Company convened at the request of the holders of the Bridge Preferred Shares. The Purchasers agree to attend in person or by proxy, and to vote all shares of Bridge Preferred Stock or Common Stock owned by the Purchasers in favor of the Stockholder Proposal at any special or annual meeting of the Company's stockholders in favor of such adoption and approval. The Company shall also use its reasonable best efforts to obtain a statement from all of its executive officers and directors who own shares of Common Stock that such persons intend to vote all such shares of Common Stock in favor of the transactions contemplated hereunder at which the Stockholder Proposal is presented for approvalStockholders Meeting. (b) As promptly as practicable after the date hereof, the Company shall take or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to (i) prepare and file with the Commission, no later than January 15, 2002, Commission any documents or materials, including, but not limited to, the preliminary Proxy Materials, pertaining to the Stockholders Meeting issuance of the Securities and the Stockholder Proposal and Stockholders Meeting, (ii) have the Proxy Materials cleared by the Commission (including with respect to clauses (i) and (ii) by consulting with the Purchasers and responding promptly to any comments from the Commission)) and (iii) take such action as may be required to be taken under applicable state securities or blue sky laws in connection with the issuance of the Securities, the Conversion Shares or the Warrant Shares. The Except to the extent otherwise determined in good faith by the Company's board of directors in the exercise of its fiduciary duties, taking into account the advice of outside counsel, the Proxy Materials shall contain the recommendation of the Board of Directors that stockholders of the Company vote in favor of the adoption and approval of the Stockholder Proposal and all other matters necessary to effectuate the transactions contemplated hereunder. The Company shall notify the Purchasers promptly of the receipt of any comments on, or any requests for amendments or supplements to, the Proxy Materials by the Commission, and the Company shall supply the Purchasers with copies of all written correspondence between the Company it and its representatives, on the one hand, and the Commission or members of its staff, on the other, with respect to the Proxy Materials. The Company, after consultation with the Purchasers, shall use its reasonable best efforts to respond promptly to any comments made by the Commission with respect to the Proxy Materials. The Company and the Purchasers shall cooperate with each other in preparing the Proxy Materials, and the Company and the Purchasers shall each use its reasonable best efforts to obtain and furnish the information required to be included in the Proxy Materials. The Company and the Purchasers each agrees promptly to correct any information provided by it for use in the Proxy Materials Statement if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Proxy Materials, Statement as so corrected, corrected to be filed with the Commission and to be disseminated promptly to holders of shares of the Common Stock, in each case as and to the extent required by Applicable Law. (c) The information contained As promptly as practicable after the date hereof, the Company shall provide the Purchasers with the form of the Certificate Amendments (excluding the Certificate of Designations) substantially in the form to be included in the Proxy Materials (other than information and to be filed with respect to (i) the Purchasers or any Secretary of their Affiliates and (ii) State of the holders State of notes pursuant Delaware. The form of Certificate Amendments are subject to the Note Purchase Agreement which, in either case, shall have been supplied in writing by them or any of their authorized representatives expressly for use in or in preparing the Proxy Materials) will not, at the date of mailing to the Company's stockholders or at the date approval of the Stockholders MeetingPurchasers, contain any statement which, at the time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact required to approval shall not be stated therein or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Stockholders Meeting. The Proxy Materials will comply as to form in all material respects with the Exchange Act and the rules and regulations of the SEC thereunder. The Company shall deliver or cause to be delivered to the Purchasers a draft of the Proxy Materials no later than January 10, 2002unreasonably withheld.

Meeting of Stockholders; Proxy Statement. Certificate ----------------------------------------------------- Amendments. ---------- (a) The Company shall take all action necessary in accordance with Applicable Law and the Certificate of Incorporation and Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders, which meeting may be the Company's annual meeting of stockholders (the "Stockholders ------------ Meeting") ), as promptly as practicable after the date hereofhereof to consider and vote ------- upon the adoption and approval of the transaction as contemplated hereunder, but in -------------------- no event later than including, without limitation, the Initial Increase Date, to obtain the Required Stockholder ApprovalCertificate Amendments. The Board stockholder vote required for the adoption and approval of Directors the transactions contemplated hereunder shall be the vote or votes required by Applicable Law, the Certificate of Incorporation, the Existing Preferred Stock Certificates of Designation and the rules of The Nasdaq Stock Market, Inc. Except as provided in Section 6.1(b) below, the board of directors of the Company shall (i) recommend to the Company's stockholders that they vote in favor of the adoption and approval of a proposal that all matters necessary to effectuate the stockholders of the Company approve the issuance of the Permanent Preferred Shares issuable upon conversion of the Bridge Preferred Shares and the issuance of the shares of Common Stock issuable upon conversion of the Permanent Preferred Shares (the "Stockholder Proposal")transactions contemplated hereunder, (ii) use its -------------------- reasonable best efforts to solicit from the Company's stockholders proxies in favor of the Stockholder Proposalsuch adoption and approval, and (iii) take all other action reasonably necessary to secure the Required Stockholder Approval. If the Required Stockholder Approval is not obtained as set forth above prior to the Initial Increase Date, the Company shall submit a proposal for the Required Stockholder Approval at the next two annual meetings of the stockholders of the Company and at two special meetings of the stockholders of the Company convened at the request of the holders of the Bridge Preferred Shares. The Purchasers agree to attend in person or by proxy, and to vote all shares of Bridge Preferred Stock or Common Stock owned by the Purchasers in favor of the Stockholder Proposal at any special or annual meeting of the Company's stockholders in favor of such adoption and approval. The Company has delivered the Shareholder Undertakings committing all of its executive officers and directors who own shares of Common Stock to vote all such shares of Common Stock in favor of the transactions contemplated hereunder at which the Stockholder Proposal is presented for approvalStockholders Meeting. (b) As promptly as practicable after the date hereof, the Company shall take or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to (i) prepare and file with the Commission, no later than January 15, 2002, Commission any documents or materials, including, but not limited to, the preliminary Proxy Materials, pertaining to the Stockholders Meeting issuance of the Securities and the Stockholder Proposal and Stockholders Meeting, (ii) have the Proxy Materials cleared by the Commission (including with respect to clauses (i) and (ii) by consulting with the Purchasers Purchaser and responding promptly to any comments from the Commission)) and (iii) take such action as may be required to be taken under applicable state securities or blue sky laws in connection with the issuance of the Securities, the Conversion Shares or the Warrant Shares except that the Company shall have no registration obligations other than as set forth in the Registration Rights Agreement. The Except to the extent otherwise determined in good faith by the Company's board of directors in the exercise of its fiduciary duties, taking into account the advice of outside counsel, the Proxy Materials shall contain the recommendation of the Board of Directors that stockholders of the Company vote in favor of the adoption and approval of the Stockholder Proposal and all other matters necessary to effectuate the transactions contemplated hereunder. The Company shall notify the Purchasers Purchaser promptly of the receipt of any comments on, or any requests for amendments or supplements to, the Proxy Materials by the Commission, and the Company shall supply the Purchasers Purchaser with copies of all written correspondence between the Company it and its representatives, on the one hand, and the Commission or members of its staff, on the other, with respect to the Proxy Materials. The Company, after consultation with the PurchasersPurchaser, shall use its reasonable best efforts to respond promptly to any comments made by the Commission with respect to the Proxy Materials. The Company and the Purchasers Purchaser shall cooperate with each other in preparing the Proxy Materials, and the Company and the Purchasers Purchaser shall each use its reasonable best efforts to obtain and furnish the information required to be included in the Proxy Materials. The Company and the Purchasers Purchaser each agrees promptly to correct any information provided by it for use in the Proxy Materials Statement if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Proxy Materials, Statement as so corrected, corrected to be filed with the Commission and to be disseminated promptly to holders of shares of the Common Stock, in each case as and to the extent required by Applicable Law. (c) The information contained As promptly as practicable after the date hereof, the Company shall provide the Purchaser (i) with the form of the Certificate Amendments, if any, (excluding the Certificate of Designations) substantially in the form to be included in the Proxy Materials (other than information and to be filed with respect to (i) the Purchasers or any Secretary of their Affiliates State of the State of Delaware and (ii) with the holders form of notes pursuant Bylaws Amendments required to give effect to the Note Purchase Agreement which, in either case, shall have been supplied in writing by them or any of their authorized representatives expressly for use in or in preparing the Proxy Materials) will not, at the date of mailing to the Company's stockholders or at the date provisions of the Stockholders Meeting, contain any statement which, at Agreement.. The form of Certificate Amendments and Bylaws Amendments are subject to the time and in light approval of the circumstances under Purchaser, which it is made, is false or misleading with respect to any material fact required to approval shall not be stated therein or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Stockholders Meeting. The Proxy Materials will comply as to form in all material respects with the Exchange Act and the rules and regulations of the SEC thereunder. The Company shall deliver or cause to be delivered to the Purchasers a draft of the Proxy Materials no later than January 10, 2002unreasonably withheld.

Meeting of Stockholders; Proxy Statement. (a) The Company shall take all action necessary in accordance with Applicable Law and the Certificate of Incorporation and Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") as promptly as practicable after the date hereof, but in -------------------- no event later than the Initial Increase Date, to obtain the Required Stockholder Approval. The Board of Directors shall (i) recommend to the Company's stockholders that they vote in favor of the adoption and approval of a proposal that the stockholders of the Company approve the issuance of the Permanent Preferred Shares issuable upon conversion of the Bridge Preferred Shares and the issuance of the shares of Common Stock issuable upon conversion of the Permanent Preferred Shares (the "Stockholder Proposal"), (ii) use its -------------------- best efforts to solicit from the Company's stockholders proxies in favor of the Stockholder Proposal, and (iii) take all other action reasonably necessary to secure the Required Stockholder Approval. If the Required Stockholder Approval is not obtained as set forth above prior to the Initial Increase Date, the Company shall submit a proposal for the Required Stockholder Approval at the next two annual meetings of the stockholders of the Company and at two special meetings of the stockholders of the Company convened at the request of the holders of the Bridge Preferred Shares. The Purchasers agree to attend in person or by proxy, and to vote all shares of Bridge Preferred Stock or Common Stock owned by the Purchasers in favor of the Stockholder Proposal at any special or annual meeting of the Company's stockholders at which the Stockholder Proposal is presented for approval. (b) As promptly as practicable after the date hereof, the Company shall take or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to (i) prepare and file with the Commission, no later than January 15, 2002, any documents or materials, including, but not limited to, the preliminary Proxy Materials, pertaining to the Stockholders Meeting and the Stockholder Proposal and (ii) have the Proxy Materials cleared by the Commission (including with respect to clauses (i) and (ii) by consulting with the Purchasers and responding promptly to any comments from the Commission). The Proxy Materials shall contain the recommendation of the Board of Directors that stockholders of the Company vote in favor of the adoption and approval of the Stockholder Proposal and all other matters necessary to effectuate the transactions contemplated hereunder. The Company shall notify the Purchasers promptly of the receipt of any comments on, or any requests for amendments or supplements to, the Proxy Materials by the Commission, and the Company shall supply the Purchasers with copies of all written correspondence between the Company and its representatives, on the one hand, and the Commission or members of its staff, on the other, with respect to the Proxy Materials. The Company, after consultation with the Purchasers, shall use its reasonable best efforts to respond promptly to any comments made by the Commission with respect to the Proxy Materials. The Company and the Purchasers shall cooperate with each other in preparing the Proxy Materials, and the Company and the Purchasers shall each use its reasonable best efforts to obtain and furnish the information required to be included in the Proxy Materials. The Company and the Purchasers each agrees promptly to correct any information provided by it for use in the Proxy Materials if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Proxy Materials, as so corrected, to be filed with the Commission and to be disseminated promptly to holders of shares of the Common Stock, in each case as and to the extent required by Applicable Law. (c) The information contained in the Proxy Materials (other than information with respect to (i) the Purchasers or any of their Affiliates and (ii) the holders of notes pursuant to the Note Purchase Agreement which, in either case, shall have been supplied in writing by them or any of their authorized representatives expressly for use in or in preparing the Proxy Materials) will not, at the date of mailing to the Company's stockholders or at the date of the Stockholders Meeting, contain any statement which, at the time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact required to be stated therein or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Stockholders Meeting. The Proxy Materials will comply as to form in all material respects with the Exchange Act and the rules and regulations of the SEC thereunder. The Company shall deliver or cause to be delivered to the Purchasers a draft of the Proxy Materials no later than January 10, 2002.