Common use of Proxy Statement; Stockholder Approval Clause in Contracts

Proxy Statement; Stockholder Approval. (a) The Company shall prepare and file with the SEC, subject to the prior review of Parent, as promptly as reasonably practicable after the date hereof, a preliminary Proxy Statement (the “Preliminary Proxy Statement”) relating to the Merger as required by the Exchange Act. The Company shall obtain and furnish the information required to be included in the Preliminary Proxy Statement, shall provide Parent with, and consult with Parent regarding, any comments that may be received from the SEC or its staff with respect thereto, shall, subject to the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement, shall cause the Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to the right to make a Recommendation Change in accordance with Section 5.02) to obtain the necessary approval of the Merger by its stockholders. If, at any time prior to the Special Meeting, any information relating to the Company, Parent, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby (including the Merger), should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared by the Company and subject to review and approval by Parent (which approval shall not be unreasonably withheld) filed with the SEC, and to the extent required by applicable Law, disseminated to the stockholders of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of the Board of Directors of the Company that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. (b) The Company shall, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold a meeting of its stockholders (the “Special Meeting”) for the purpose of obtaining the Requisite Stockholder Approval required in connection with this Agreement and the Merger, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.02, the Board of Directors of the Company shall continue to recommend that the Company’s stockholders vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in this Agreement and the Company shall use its reasonable best efforts to obtain the Requisite Stockholder Approval in order to consummate the Merger.

Proxy Statement; Stockholder Approval. (a) The Company shall ------------------------------------- shall, as promptly as practicable following the date of this Agreement, prepare and file with the SECCommission, subject and will use its best efforts to have cleared by the prior review of Parent, Commission and thereafter shall mail to its stockholders as promptly as reasonably practicable after a proxy statement and a form of proxy in connection with, among other things, the date hereof, a preliminary Proxy Statement (vote of the “Preliminary Proxy Statement”) relating Company's stockholders to approve the Merger as required issuance and sale of Common Stock contemplated by the Exchange Actthis Agreement. The Company shall obtain and furnish the information required to be included in the Preliminary Proxy Statement, shall provide Parent withproxy statement, and consult with Parent regarding, any comments that may be received from the SEC amendments thereof or its staff with respect supplements thereto, shallwill not, subject to at the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement, shall cause the Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to the right to make a Recommendation Change in accordance with Section 5.02) to obtain the necessary approval time of the Merger by its stockholders. If, mailing of the proxy statement or any amendments thereof or supplements thereto and at any the time prior to of the Special Meeting, any information relating to the Company, Parent, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby Stockholders Meeting (including the Mergeras hereinafter defined), should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party except that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared no representation is made by the Company and subject with respect to review and approval information supplied in writing by Parent (which approval shall not be unreasonably withheld) filed the Purchaser specifically for inclusion in the proxy statement. The proxy statement will comply as to form in all material respects with the SEC, and to the extent required by applicable Law, disseminated to the stockholders provisions of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of the Board of Directors of the Company that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger Exchange Act and the other transactions contemplated by this Agreementrules and regulations promulgated thereunder. (b) The Company shall, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, shall duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold its annual, or a special, meeting of its stockholders (the “Special "Stockholders Meeting”") for the purpose of obtaining the Requisite Stockholder Approval required in connection with this Agreement and the Merger, -------------------- and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.02, the Board of Directors of the Company shall continue to recommend that the Company’s stockholders vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in this Agreement and the Company shall use its reasonable best efforts to obtain the Requisite Stockholder Approval requisite affirmative approval of its stockholders at the Stockholders Meeting of the issuance and sale of the Common Stock contemplated by this Agreement. The Purchaser shall be present, in order person or by proxy, at the Stockholders Meeting and shall vote or cause to consummate be voted all shares of Common Stock held of record or beneficially owned (with the Mergerpower to vote or direct the vote) by him and eligible to vote as of the record date for such meeting in favor of the proposal seeking such approval.

Proxy Statement; Stockholder Approval. (a) The Company shall shall, in accordance with applicable law and its Certificate of Incorporation and By-Laws: (i) duly call, give notice of, convene and hold a special meeting of its stockholders (the "Special Meeting") as soon as practicable following the mailing of the Proxy Statement (as defined below) for the purpose of obtaining the Stockholder Approval; (ii) prepare and file a form of proxy statement to be mailed to the stockholders of the Company in connection with the SEC, subject to Special Meeting (the prior review of Parent, "Proxy Statement") as promptly soon as reasonably practicable after the date hereofhereof (provided that the Investors and their counsel shall be given reasonable opportunity to review and comment on the preliminary proxy statement, a preliminary any amendments thereto and related communications with stockholders prior to filing with the SEC and provided further that the Investors shall have the right to consent to any descriptions of or references to (i) the Investors or any of their Affiliates, and (ii) the Series A Certificate of Designations, the Series B Certificate of Designations and the Related Agreements and the transactions contemplated thereby in the Proxy Statement or such communications, which consent shall not be unreasonably withheld or delayed) and use its reasonable best efforts (the “Preliminary Proxy Statement”x) (1) relating to the Merger as required by the Exchange Act. The Company shall obtain and furnish the information required to be included in the Preliminary Proxy Statement, shall provide Parent with, and consult with Parent regarding, any comments that may be received from the SEC or its staff with respect thereto, shall, subject to the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement and (2) to promptly supply the Investors with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement, shall and (y) to cause the definitive Proxy Statement to be mailed to its stockholders at the earliest practicable date following the clearance of the Proxy Statement by the SEC and, if necessary, after the Proxy Statement shall have been so mailed, promptly circulate amended, supplemental or supplemented proxy material, and, if required in connection therewith, resolicit proxies; (iii) except to the extent the Board of Directors determines in good faith, after consultation with outside counsel, that contrary action is required by such Board of Directors' fiduciary duties under applicable law, recommend, without qualification, that the stockholders of the Company vote to adopt and approve (x) the issuance of the Shares and the shares of Common Stock issuable upon conversion of the Shares, (y) the Company Charter Amendment and (z) the adoption of the Hexcel Corporation 2003 Incentive Stock Plan and amendments to certain of the Company’s stockholders as soon as reasonably practicable 's existing equity incentive plans, substantially on terms set forth in Exhibit I hereto, and include in the Proxy Statement such unqualified recommendations and take all lawful action to solicit such approvals and acceptances. (b) The Company will advise the Investors, promptly after it receives notice thereof, of the resolution time when any supplement or amendment has been filed or of any such comments and shall use its reasonable best efforts (subject request by the SEC for an amendment of or supplement to the right to make a Recommendation Change in accordance with Section 5.02) to obtain Proxy Statement or comments thereon and responses thereto or requests by the necessary approval of the Merger by its stockholdersSEC for additional information. If, If at any time prior to the Special MeetingCompany or the Investors, respectively, discover any information relating to the CompanyCompany or the Investors, Parent, Merger Sub, or any of their respective Affiliatesaffiliates, this Agreement officers or the transactions contemplated hereby (including the Merger)directors, should be discovered by the Company or Parent which that should be set forth in an amendment or supplement to the Proxy Statement, Statement so that the Proxy Statement shall document will not contain include any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading, then the party that discovers such any misleading information shall promptly notify the other party, parties hereto and an appropriate amendment or supplement describing such the information shall be prepared by the Company and subject to review and approval by Parent (which approval shall not be unreasonably withheld) promptly filed with the SECSEC and, and to the extent required by applicable Lawlaw or regulation, disseminated to the stockholders of the Company. Except as Section 5.02 expressly permits, 's stockholders. (c) The Company shall use reasonable efforts to ensure that the Proxy Statement (including without limitation any SEC Reports incorporated by reference therein) shall include the recommendation of the Board of Directors of the Company comply in all material respects with all applicable federal or other securities laws, except that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. (b) The Company shall, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold a meeting of its stockholders (the “Special Meeting”) for the purpose of obtaining the Requisite Stockholder Approval required in connection with this Agreement and the Merger, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.02, the Board of Directors of the Company shall continue have no obligation as to recommend that the Company’s stockholders vote in favor information provided by any of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in this Agreement and the Company shall use its reasonable best efforts to obtain the Requisite Stockholder Approval in order to consummate the MergerInvestors.

Proxy Statement; Stockholder Approval. (a) The Company shall prepare and file with the SEC, subject to the prior review of Parentfile, as promptly as reasonably practicable (but in no event later than 15 calendar days after the date hereof, ) with the SEC a preliminary Proxy Statement proxy statement in connection with a meeting of the Company’s stockholders to obtain the Stockholder Approval, and shall use its reasonable best efforts to have such proxy statement (the “Preliminary Proxy Statement”) relating to receive clearance from the Merger SEC as required by the Exchange Actpromptly as practicable after filing. The Company shall obtain and furnish the information required use its reasonable best efforts to be included in the Preliminary Proxy Statement, shall provide Parent with, and consult with Parent regarding, respond to any comments that may be received from of the SEC or its staff with respect thereto, shall, subject and to the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement, shall cause the definitive Proxy Statement to be mailed to the Company’s stockholders as soon promptly as reasonably practicable after (and no later than three Business Days after) clearance thereof. The Company shall notify the resolution Investors promptly of the receipt of any such comments and shall use from the SEC or its reasonable best efforts (subject staff with respect to the right Proxy Statement and of any request by the SEC or its staff for amendments or supplements to make a Recommendation Change in accordance the Proxy Statement or for additional information and will supply the Investors with Section 5.02) copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to obtain the necessary approval of the Merger by its stockholdersProxy Statement. If, If at any time prior to the Special Meeting, Stockholders’ Meeting there shall occur any information relating event that is required to the Company, Parent, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby (including the Merger), should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Company shall as promptly as practicable prepare and mail to its stockholders such an amendment or supplement. The Company shall consult with the Investors prior to filing and mailing the Proxy Statement, or any amendment or supplement thereto, and provide the Investors with a reasonable opportunity to comment thereon. Subject to Section 3.3, the Board Recommendation shall be included in the Proxy Statement. The Proxy Statement shall will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared by the Company and subject . The Proxy Statement will comply as to review and approval by Parent (which approval shall not be unreasonably withheld) filed form in all material respects with the SEC, and to the extent required by applicable Law, disseminated to the stockholders requirements of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of the Board of Directors of the Company that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger Exchange Act and the other transactions contemplated by this Agreement. (b) rules and regulations thereunder. The Company shall, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, shall duly take all lawful action necessary to establish a record date for, duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold a meeting of its stockholders as promptly as reasonably practicable after the Proxy Statement has received clearance by the SEC, but in no event later than 60 calendar days after such clearance, to vote on a proposal (the “Special Stockholder Proposal”) to approve the issuance of the Warrants and the Warrant Shares for purposes of Section 312.03 of the NYSE Listed Company Manual (such meeting, the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval required in connection with this Agreement and the Merger, and shall use its reasonable best efforts ). Subject to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.023.3, the Board of Directors of the Company shall continue recommend to recommend that the Company’s stockholders vote in favor of that such stockholders approve the adoption of Stockholder Proposal (the agreement of merger (“Board Recommendation”), and shall not modify or withdraw such Board Recommendation other than as such term is used in permitted by Section 251 of the Corporation Law) contained in this Agreement and the 3.3(d). The Company shall use its reasonable best efforts to obtain solicit proxies in favor of the Requisite Stockholder Approval in order Proposal, subject to consummate the MergerSection 3.3.

Proxy Statement; Stockholder Approval. (a) The As soon as practicable following the date of this Agreement, and in no event later than one (1) Business Day after the No-Shop Start Date, the Company shall prepare and file with the SEC, subject to the prior review of Parent, as promptly as reasonably practicable after the date hereof, SEC a preliminary Proxy Statement (Statement. Parent shall use its reasonable best efforts to cooperate with the “Preliminary Proxy Statement”) relating to the Merger as required by the Exchange Act. The Company shall obtain and furnish the information required to be included in the Preliminary preparation of the Proxy Statement, shall provide Parent with, and consult with Parent regarding, any comments that may be received from the SEC or its staff with respect thereto, shall, subject to the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement, shall cause the Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to promptly furnish all information concerning Parent and Merger Sub that is necessary or appropriate in connection with the preparation of the Proxy Statement. Parent shall cause the information supplied or to be supplied by or on behalf of Parent and Merger Sub specifically for inclusion or incorporation by reference in the Proxy Statement not to contain, on the date of the mailing to the right to make a Recommendation Change in accordance with Section 5.02) to obtain Company’s stockholders and at the necessary approval time of the Merger by its stockholders. If, at any time prior to the Special Company Meeting, any information relating untrue statement of a material fact or omit to state any material fact required to be stated or necessary in order to make the Companystatements therein, Parentin light of the circumstances under which they were made, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby (including the Merger), should be discovered by the not misleading. The Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that will prepare the Proxy Statement shall not such that it will not, on the date of filing with the SEC, at the time the Proxy Statement is mailed and at the time of the Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Company will cause the Proxy Statement to comply in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder and other Applicable Law. (b) The Company shall use its reasonable best efforts to respond promptly to any comments from the SEC or the staff of the SEC on the Proxy Statement. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to its stockholders as promptly as practicable (and in any event within five (5) Business Days following the later of (i) the resolution of any comments from the SEC or the staff of the SEC with respect to the preliminary Proxy Statement and (ii) the expiration of the ten-day waiting period provided in Rule 14a-6(a) promulgated under the Exchange Act (such later date, the “Clearance Date”)) and to cause the Clearance Date to occur as promptly as reasonably practicable following the date hereof. No filing of, or amendment or supplement to, or response to staff comments on, the Proxy Statement will be made by the Company, without providing Parent and its counsel a reasonable opportunity to review and comment thereon and giving reasonable consideration in good faith to such comments (it being understood that Parent and its counsel shall provide any comments thereon as soon as reasonably practicable in order to provide the Company and its counsel sufficient opportunity to review and consider such comments in advance of any such filing, amendment or supplement). If at any time prior to the Company Meeting (or any adjournment or postponement thereof) any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, is discovered by the Company or Parent which is required to be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared by the Company and subject to review and approval by Parent (which approval shall not be unreasonably withheld) filed with the SEC, and to the extent required by applicable Law, disseminated to the stockholders of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of the Board of Directors of the Company that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. (b) The Company shall, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold a meeting of its stockholders (the “Special Meeting”) for the purpose of obtaining the Requisite Stockholder Approval required in connection with this Agreement and the Merger, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.02, the Board of Directors of the Company shall continue to recommend that the Company’s stockholders vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in this Agreement parties hereto and the Company shall use its reasonable best efforts to promptly file an appropriate amendment or supplement describing such information with the SEC and, to the extent required by Applicable Law, disseminate such amendment or supplement to the stockholders of the Company. The Company shall notify Parent promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement, or the transactions contemplated hereby. At the Company’s reasonable request, Parent shall use reasonable best efforts and shall cause its counsel to use reasonable best efforts to assist and cooperate with the Company and its counsel in the resolution of any such comments from the SEC or the staff of the SEC with respect to the Proxy Statement. Notwithstanding anything to the contrary in this Section 6.17, (x) the right of Parent and its counsel to comment on the preliminary or the definitive Proxy Statement, any amendment or supplement thereto or any comments or communications received from the SEC or its staff shall not apply with respect to any disclosure, amendment or supplement made by the Company to effect a Change in Recommendation in accordance with Section 6.02, and (y) the Company shall have no responsibility with respect to any information or statements made or incorporated by reference in the Proxy Statement which were based on information supplied by or on behalf of Parent specifically for inclusion in the Proxy Statement. (c) The Company shall take all actions necessary to duly call, establish a record date for, give notice of, convene and hold a meeting of its stockholders, for the purpose of voting upon the adoption of this Agreement (the “Company Meeting”), so that the Company Meeting occurs as soon as possible following the Clearance Date, in accordance with Applicable Laws and the Company’s Organizational Documents; provided, that the Company may postpone or adjourn the Company Meeting after consultation with Parent, (i) if as of the time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to the extent that at such time the Company has not received proxies sufficient to allow the receipt of the Requisite Stockholder Approval at the Company Meeting or (ii) to allow time for the filing and dissemination of, and a sufficient period for evaluation by the Company’s stockholders of, any supplemental or amended disclosure document to the extent that the Company Board has determined in good faith (after consultation with the Company’s outside legal counsel) is necessary or required under Applicable Laws. Once the Company has established a record date for the Company Meeting, the Company shall not change such record date or establish a different record date for the Company Meeting without the prior written consent of Parent (not to be unreasonably withheld, delayed, or conditioned), unless required to do so by the DGCL. If the record date for the Company Meeting is changed, the Company shall, as to that record date, comply with each of its obligations under this Section 6.17. In connection with the Company Meeting, the Company shall (i) unless there has been a Change in Recommendation in accordance with Section 6.02, use reasonable best efforts to obtain the Requisite Stockholder Approval and (ii) otherwise comply with all legal requirements applicable to such meeting. The Company shall include in order the Proxy Statement the Company Recommendation, unless there has been a Change in Recommendation in accordance with Section 6.02. Without limiting the generality of the foregoing, the Company shall submit this Agreement for adoption by its stockholders at the Company Meeting whether or not a Change in Recommendation shall have occurred or an Acquisition Proposal shall have been publicly announced or otherwise made known to consummate the MergerCompany, the Company Board, or the Company’s Representatives or its stockholders.

Proxy Statement; Stockholder Approval. (a) The Company, acting through its Board of Directors, shall, in accordance with applicable law and its Articles of Incorporation and by-laws: (i) as soon as practicable following the purchase of Shares by the Purchaser pursuant to the Amended Offer, Company shall will prepare and file with the SEC a Proxy Statement (the "Proxy Statement") with respect to a special meeting of shareholders of Company (the "Special Meeting") (except to the extent approval of shareholders of Company is not required to be obtained pursuant to the GCL or may be obtained by written consent) for the purpose of voting to approve and adopt this Agreement (or, in the event that the Parent Companies shall have the right to vote a sufficient number of Shares such that the Parent Companies may approve and adopt this Agreement, an Information Statement with respect to the Special Meeting (the "Information Statement")) and shall use its reasonable efforts to obtain such stockholder approval; and (ii) promptly and duly call, give notice of, convene and hold the Special Meeting (except to the extent approval of shareholders of Company is not required to be obtained pursuant to the GCL or may be obtained by written consent) as soon as practicable following the date upon which the Proxy Statement or Information Statement is cleared for mailing by the SEC, subject (except to the prior review extent approval of Parentshareholders of Company is not required to be obtained pursuant to the GCL or may be obtained by written consent); and (iii) recommend approval and adoption of this Agreement by the stockholders of Company and include in the Proxy Statement or Information Statement such recommendation, and take all lawful action to solicit such approval. (b) Company, as promptly as reasonably practicable after following the date hereof, a preliminary upon which the Proxy Statement (the “Preliminary Proxy Statement”) relating to the Merger as required or Information Statement is cleared for mailing by the Exchange Act. The Company shall obtain and furnish the information required to be included in the Preliminary Proxy Statement, shall provide Parent with, and consult with Parent regarding, any comments that may be received from the SEC or its staff with respect thereto, shall, subject to the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy StatementSEC, shall cause the definitive Proxy Statement or Information Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to the right to make a Recommendation Change in accordance with Section 5.02) to obtain the necessary approval of the Merger by its stockholders. IfAt the Special Meeting (i) Company shall vote or cause to be voted in favor of approval and adoption of this Agreement all Shares as to which it holds proxies at such time and (ii) the Parent Companies shall vote or cause to be voted in favor of the approval and adoption of this Agreement all Shares owned by them or as to which they hold proxies at such time. The Proxy Statement or Information Statement, at any time prior to the Special Meetingdate thereof and, any information relating to if applicable, at the Companydate of such meeting, Parent, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby (including the Merger), should be discovered by the Company or Parent which should be set forth in will not include an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are were made, not misleading; provided, however, that the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared by the Company and subject to review and approval by Parent (which approval foregoing shall not be unreasonably withheld) filed with the SEC, and apply to the extent required that any such untrue statement of a material fact or omission to state a material fact was made by applicable Law, disseminated to the stockholders of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of the Board of Directors of the Company that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth reliance upon and in this Agreement. Parent shall, upon request, furnish to the Company all conformity with written information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable the Parent Companies furnished to Company by Parent specifically for use in connection with the Proxy Statement or any other statementInformation Statement. Parent agrees that the information provided to Company for use in the Proxy Statement or Information Statement shall in all material respects comply with the requirements of the Exchange Act and the rules and regulations thereunder. The Proxy Statement or Information Statement shall not be filed, filing, notice and no amendment or application supplement to the Proxy Statement or Information Statement will be made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection Company, without consultation with the Merger Parent and the other transactions contemplated by this Agreementits counsel. (bc) The Company shall, as promptly as reasonably practicable following the date of Company's obligations under this AgreementSection 8.3 shall at all times remain subject to its fiduciary duties imposed under applicable law, in accordance with customary timing in consultation with Parentthe event that, take all action necessary to establish a record date for, duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold a meeting of its stockholders (the “Special Meeting”) for the purpose of obtaining the Requisite Stockholder Approval if required in connection with this Agreement and the Merger, and shall use its reasonable best efforts to cause by such meeting to occur fiduciary duties as soon as reasonably practicable. Except as specifically permitted advised by Section 5.02counsel, the Board of Directors of the Company shall continue to recommend have withdrawn or modified its recommendation that the Company’s stockholders vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in approve and adopt this Agreement and the Company shall use its reasonable best efforts to obtain the Requisite Stockholder Approval in order to consummate the MergerAgreement.

Proxy Statement; Stockholder Approval. (a) The Company shall ------------------------------------- shall, as promptly as practicable following the date of this Agreement, prepare and file with the SECCommission, subject and will use its best efforts to have cleared by the prior review of Parent, Commission and thereafter shall mail to its stockholders as promptly as reasonably practicable after a proxy statement and a form of proxy in connection with, among other things, the date hereof, a preliminary Proxy Statement (vote of the “Preliminary Proxy Statement”) relating Company's stockholders to approve the Merger as required issuance and sale of Common Stock contemplated by the Exchange Actthis Agreement. The Company shall obtain and furnish the information required to be included in the Preliminary Proxy Statement, shall provide Parent withproxy statement, and consult with Parent regarding, any comments that may be received from the SEC amendments thereof or its staff with respect supplements thereto, shallwill not, subject to at the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement, shall cause the Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to the right to make a Recommendation Change in accordance with Section 5.02) to obtain the necessary approval time of the Merger by its stockholders. If, mailing of the proxy statement or any amendments thereof or supplements thereto and at any the time prior to of the Special Meeting, any information relating to the Company, Parent, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby Stockholders Meeting (including the Mergeras hereinafter defined), should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party except that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared no representation is made by the Company and subject with respect to review and approval information supplied in writing by Parent (which approval shall not be unreasonably withheld) filed the Purchaser or any affiliate of the Purchaser specifically for inclusion in the proxy statement. The proxy statement will comply as to form in all material respects with the SEC, and to the extent required by applicable Law, disseminated to the stockholders provisions of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of the Board of Directors of the Company that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger Exchange Act and the other transactions contemplated by this Agreementrules and regulations promulgated thereunder. (b) The Company shall, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, shall duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold its annual, or a special, meeting of its stockholders (the “Special "Stockholders ------------ Meeting”") for the purpose of obtaining the Requisite Stockholder Approval required in connection with this Agreement and the Merger, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.02, the Board of Directors of the Company shall continue to recommend that the Company’s stockholders vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in this Agreement and the Company shall use its reasonable best efforts to obtain the Requisite Stockholder Approval requisite affirmative ------- approval of its stockholders at the Stockholders Meeting of the issuance and sale of the Common Stock contemplated by this Agreement. The Purchaser and Chilmark shall be present, in order person or by proxy, at the Stockholders Meeting and shall vote or cause to consummate be voted all shares of Common Stock held of record or beneficially owned (with the Mergerpower to vote or direct the vote) by it and eligible to vote as of the record date for such meeting in favor of the proposal seeking such approval.

Proxy Statement; Stockholder Approval. (ai) The Company has prepared and filed with the SEC preliminary proxy materials with respect to a special meeting of the stockholders of the Company (the “Stockholder Meeting”), which the Company shall use its reasonable best efforts to hold by no later than February 20, 2005, and which shall be held not later than March 20, 2005 (the “Stockholder Meeting Deadline”), for the purpose of approving proposals (the “Transaction Proposals”) providing for, among other things, (A) the Company’s issuance of all of the Securities as described in the Transaction Documents in accordance with applicable law and the rules and regulations of the Principal Market and (B) the increase in the authorized Class A Common Stock from 60,000,000 shares to 150,000,000 shares (such affirmative approval being referred to herein as the “Stockholder Approval”). The Company shall use its best efforts to prepare and file with the SECSEC a definitive proxy statement, subject to substantially in the prior review of Parentform that has been previously reviewed and reasonably approved by SAC and Xxxxxxx Xxxx & Xxxxx LLP, as promptly as reasonably practicable after the date hereof, a preliminary Proxy Statement (but in no event later than 7 days after the “Preliminary Proxy Statement”) relating to date hereof, reflecting the Merger as required by the Exchange Actterms and conditions of this Agreement. The Company proxy (or information statement, if applicable) materials shall obtain not contain any information concerning any Buyer without such Buyer’s consent. The proxy (or information statement, if applicable) materials at the time they were and furnish are filed with the information required to be included in the Preliminary Proxy StatementSEC, shall provide Parent with, and consult with Parent regarding, any comments that may be received from the SEC or its staff with respect thereto, shall, subject to the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement, shall cause the Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to the right to make a Recommendation Change in accordance with Section 5.02) to obtain the necessary approval of the Merger by its stockholders. Ifdate of the last amendment thereof, at any time prior to the Special Meetingif amended after filing, any information relating to the Company, Parent, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby (including the Merger), should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading. (ii) The Company shall provide each stockholder entitled to vote at the Stockholder Meeting a proxy statement and the Company shall use its best efforts to solicit the stockholders’ approval of the Transaction Proposals (which best efforts shall include, without limitation, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared by the Company and subject requirement to review and approval by Parent (which approval shall not be unreasonably withheldhire a reputable proxy solicitor) filed with the SEC, and to the extent required by applicable Law, disseminated to the stockholders of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of cause the Board of Directors of the Company that to recommend to the stockholders adopt that they approve the agreement Transaction Resolutions. The Company shall be obligated to obtain the Stockholder Approval by the Stockholder Meeting Deadline. (iii) If the Company calls a special (or annual) meeting of merger (as stockholders pursuant to this Section 4, neither prior to nor at such term is used in Section 251 of meeting shall the Corporation Law) set Company put forth in this Agreement. Parent shallany matter, upon requestother than approving the Transaction Proposals, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement holders of Class A Common Stock or any other statement, filing, notice or application made by or on behalf voting securities of the Company or for their approval without the prior written consent (such consent not to be unreasonably withheld) of the Majority Buyers, except that the Company may include in any meeting a proposal regarding the election of their respective Subsidiaries directors and a proposal regarding the adoption of an employee stock incentive plan in a form reasonably acceptable to any Governmental Entity in connection with the Merger and the other transactions contemplated by this AgreementMajority Buyers. (biv) The Notwithstanding anything in this Section 4(o) to the contrary, the Company shall, as promptly as reasonably practicable following may satisfy its obligations in this Section 4(o) by obtaining the date Stockholder Approval of this Agreement, the Transaction Proposals by written consent in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, duly call, give notice of, and, after the mailing of the Proxy Statement, convene applicable law and hold a meeting of its stockholders (the “Special Meeting”) for the purpose of obtaining the Requisite Stockholder Approval required in connection with this Agreement and the Merger, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.02, the Board of Directors of the Company shall continue to recommend that the Company’s stockholders vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in this Agreement governing documents and the Company shall use its reasonable best efforts to obtain filing of an information statement with the Requisite Stockholder Approval SEC, with such consent and information statement substantially in order to consummate the Mergerform that has been previously reviewed by SAC and Xxxxxxx Xxxx & Xxxxx LLP.

Proxy Statement; Stockholder Approval. (a) The Company shall shall, as promptly as practicable following the date of this Agreement, prepare and file with the SECCommission, subject and will use its best efforts to have cleared by the prior review of Parent, Commission and thereafter shall mail to its stockholders as promptly as reasonably practicable after a proxy statement and a form of proxy in connection with, among other things, the date hereof, a preliminary Proxy Statement (vote of the “Preliminary Proxy Statement”) relating Company's stockholders to approve the Merger as required issuance and sale of Common Stock contemplated by the Exchange Actthis Agreement. The Company shall obtain and furnish the information required to be included in the Preliminary Proxy Statement, shall provide Parent withproxy statement, and consult with Parent regarding, any comments that may be received from the SEC amendments thereof or its staff with respect supplements thereto, shallwill not, subject to at the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement, shall cause the Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to the right to make a Recommendation Change in accordance with Section 5.02) to obtain the necessary approval time of the Merger by its stockholders. If, mailing of the proxy statement or any amendments thereof or supplements thereto and at any the time prior to of the Special Meeting, any information relating to the Company, Parent, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby Stockholders Meeting (including the Mergeras hereinafter defined), should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party except that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared no representation is made by the Company and subject with respect to review and approval information supplied in writing by Parent (which approval shall not be unreasonably withheld) filed the Purchaser or any affiliate of the Purchaser specifically for inclusion in the proxy statement. The proxy statement will comply as to form in all material respects with the SEC, and to the extent required by applicable Law, disseminated to the stockholders provisions of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of the Board of Directors of the Company that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger Exchange Act and the other transactions contemplated by this Agreementrules and regulations promulgated thereunder. (b) The Company shall, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, shall duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold its annual, or a special, meeting of its stockholders (the “Special "Stockholders Meeting”") for the purpose of obtaining the Requisite Stockholder Approval required in connection with this Agreement and the Merger, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.02, the Board of Directors of the Company shall continue to recommend that the Company’s stockholders vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in this Agreement and the Company shall use its reasonable best efforts to obtain the Requisite Stockholder Approval requisite affirmative approval of its stockholders at the Stockholders Meeting of the issuance and sale of the Common Stock contemplated by this Agreement. The Purchaser and Chilmark shall be present, in order person or by proxy, at the Stockholders Meeting and shall vote or cause to consummate be voted all shares of Common Stock held of record or beneficially owned (with the Mergerpower to vote or direct the vote) by it and eligible to vote as of the record date for such meeting in favor of the proposal seeking such approval.

Proxy Statement; Stockholder Approval. AMI, acting through its Board of Directors, shall, in accordance with applicable law and its Articles of Incorporation and Bylaws: (a) The Company promptly and duly call, give notice of, convene and hold as soon as practicable following the date upon which the Registration Statement becomes effective a meeting of its stockholders for the purpose of A-24 30 voting to approve and adopt this Agreement and shall use its best efforts, except to the extent required in the exercise of the fiduciary duties of the Board of Directors of AMI under applicable law as advised by independent counsel, to obtain such stockholders' approval; and (b) except to the extent required in the exercise of the fiduciary duties of the Board of Directors of AMI under applicable law as advised by independent counsel, recommend approval and adoption of this Agreement by the stockholders of AMI, and include in the Proxy Statement such recommendation, and take all lawful action to solicit such approval. (c) As promptly as practicable, the parties shall prepare and file with the SEC, subject to the prior review of Parent, as promptly as reasonably practicable after the date hereof, SEC a preliminary Proxy Statement (the “Preliminary Proxy Statement”) relating and, after consultation with each other, respond to the Merger as required by the Exchange Act. The Company shall obtain and furnish the information required to be included in the Preliminary Proxy Statement, shall provide Parent with, and consult with Parent regarding, any comments that may be received from of the SEC or its staff with respect thereto, shall, subject to the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary preliminary Proxy Statement, shall Statement and cause the definitive Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to the right to make a Recommendation Change in accordance with Section 5.02) to obtain the necessary approval of the Merger by its AMI stockholders. IfAt the stockholders' meeting of AMI, at any time prior NPB shall vote or cause to the Special Meeting, any information relating to the Company, Parent, Merger Sub, any be voted in favor of their respective Affiliates, approval and adoption of this Agreement or the transactions contemplated hereby (including the Merger)all shares of AMI Common Stock which it beneficially owns at such time, should be discovered by the Company or Parent if any. Whenever any event occurs which should be set forth in an amendment or a supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared by the Company and subject to review and approval by Parent (which approval shall not be unreasonably withheld) filed with the SEC, and to the extent required by applicable Law, disseminated to the stockholders of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of the Board of Directors of the Company that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application filing required to be made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and SEC, each party will promptly inform the other transactions contemplated by this Agreement. (b) and will cooperate in filing with the SEC and/or mailing to AMI's stockholders such amendment or supplement. The Company shall, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold a meeting of its stockholders (the “Special Meeting”) for the purpose of obtaining the Requisite Stockholder Approval required all amendments and supplements thereto, shall comply with applicable law and be in connection with this Agreement form and the Merger, substance satisfactory to NPB and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.02, the Board of Directors of the Company shall continue to recommend that the Company’s stockholders vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in this Agreement and the Company shall use its reasonable best efforts to obtain the Requisite Stockholder Approval in order to consummate the MergerAMI.

Proxy Statement; Stockholder Approval. (ai) The Within three business days following the execution of this Agreement, the Company shall prepare and file with the SEC preliminary proxy materials with respect to a special meeting of the stockholders of the Company (the “Stockholder Meeting”), which the Company shall use its reasonable best efforts to hold and shall hold by no later than August 5, 2005 (such date, which shall be August 19, 2005 in the event that the proxy statement relating to such meeting is reviewed by the SEC, subject the “Stockholder Meeting Deadline”), for the purpose of approving proposals (the “Transaction Proposals”) providing for, among other things (A) the full authorization, approval and adoption for all purposes in accordance with all applicable law of the Certificate and the Series AA Preferred, and (B) the Company’s issuance of all of the Securities as described in the Transaction Documents in accordance with applicable law and the rules and regulations of the Principal Market (such affirmative approval being referred to herein as the prior review of Parent“Stockholder Approval”). The Company shall use its best efforts to prepare and file with the SEC a definitive proxy statement, substantially in the form that has been previously reviewed and reasonably approved by Dolphin and Xxxxxx Xxxxxxx & Xxxx LLP, as promptly as reasonably practicable after the date hereof, a preliminary Proxy Statement (but in no event later than seven days after the “Preliminary Proxy Statement”) relating to date hereof, reflecting the Merger as required by the Exchange Actterms and conditions of this Agreement. The Company proxy (or information statement, if applicable) materials shall obtain and furnish the not contain any information required to be included in the Preliminary Proxy Statementconcerning any Buyer without Dolphin’s consent, shall provide Parent with, and consult with Parent regarding, any comments that which may be received from granted in its sole discretion. The proxy (or information statement, if applicable) materials at the time they are filed with the SEC or its staff with respect thereto, shall, subject to the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement, shall cause the Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to the right to make a Recommendation Change in accordance with Section 5.02) to obtain the necessary approval of the Merger by its stockholders. If, at any time prior to the Special Meeting, any information relating to the Company, Parent, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby (including the Merger), should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading, . (ii) The Company shall provide each stockholder entitled to vote at the party that discovers such information shall promptly notify the other party, Stockholder Meeting a proxy statement and an appropriate amendment or supplement describing such information shall be prepared by the Company and subject shall use its best efforts to review and solicit the stockholders’ approval by Parent of the Transaction Proposals (which approval shall not be unreasonably withheldbest efforts may include, without limitation, retaining a reputable proxy solicitor) filed with the SEC, and to the extent required by applicable Law, disseminated to the stockholders of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of cause the Board of Directors of the Company that to recommend to the stockholders adopt that they approve the agreement transaction resolutions. The Company shall be obligated to obtain the Stockholder Approval by the Stockholder Meeting Deadline. (iii) If the Company calls a special (or annual) meeting of merger (as stockholders pursuant to this Section 4, neither prior to nor at such term is used in Section 251 of meeting shall the Corporation Law) set Company put forth in this Agreement. Parent shallany matter, upon requestother than approving the Transaction Proposals, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement holders of Common Stock or any other statement, filing, notice or application made by or on behalf voting securities of the Company or any for their approval without the prior written consent (such consent not to be unreasonably withheld) of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. (b) The Company shallDolphin, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold a meeting of its stockholders (the “Special Meeting”) for the purpose of obtaining the Requisite Stockholder Approval required in connection with this Agreement and the Merger, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. Except as specifically permitted by Section 5.02, the Board of Directors of except that the Company shall continue to recommend that may include in any meeting a proposal regarding the Company’s stockholders vote in favor election of directors and a proposal regarding the adoption of the agreement of merger (as such term is used an employee stock incentive plan in Section 251 of the Corporation Law) contained in this Agreement and the Company shall use its reasonable best efforts a form reasonably acceptable to obtain the Requisite Stockholder Approval in order to consummate the MergerDolphin.

Proxy Statement; Stockholder Approval. (a) The Company Parties shall as soon as practicable following the date of this Agreement prepare and file with the SEC, subject SEC the Schedule 13E-3 and Target shall as soon as practicable following the date of this Agreement prepare and file with the SEC a proxy statement with respect to the prior review meeting of Parentthe stockholders of Target in connection with the Merger (the "PROXY STATEMENT"), and each Party shall use its reasonable best efforts to respond as promptly as reasonably practicable after the date hereof, a preliminary Proxy Statement (the “Preliminary Proxy Statement”) relating to the Merger as required by the Exchange Act. The Company shall obtain and furnish the information required to be included in the Preliminary Proxy Statement, shall provide Parent with, and consult with Parent regarding, any comments that may be received of the SEC with respect thereto. Each Party shall notify the other promptly of the receipt of any comments from the SEC or its staff with respect thereto, shall, subject to the prior review of Parent, respond as promptly as reasonably practicable to and or any such comments made request by the SEC or its staff for amendments or supplements to the Schedule 13E-3 and the Proxy Statement or for additional information and shall supply the other with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Preliminary Schedule 13E-3 and the Proxy Statement, shall cause the Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the resolution of any such comments and shall use its reasonable best efforts (subject to the right to make a Recommendation Change in accordance with Section 5.02) to obtain the necessary approval of the Merger by its stockholdersapplicable. If, If at any time prior to receipt of the Special Meeting, Requisite Target Vote there shall occur any information relating to the Company, Parent, Merger Sub, any of their respective Affiliates, this Agreement or the transactions contemplated hereby (including the Merger), should be discovered by the Company or Parent which event that should be set forth in an amendment or supplement to the Proxy Statement, so that Target shall promptly prepare and mail to its stockholders such an amendment or supplement. Target shall not file with the SEC or mail any Proxy Statement, or any amendment or supplement thereto, to which Buyer reasonably objects. Target shall use its reasonable best efforts to cause the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order mailed to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall Target's stockholders as promptly notify the other party, and an appropriate amendment or supplement describing such information shall be prepared by the Company and subject to review and approval by Parent (which approval shall not be unreasonably withheld) filed as practicable after filing with the SEC, and to the extent required by applicable Law, disseminated to the stockholders of the Company. Except as Section 5.02 expressly permits, the Proxy Statement shall include the recommendation of the Board of Directors of the Company that the stockholders adopt the agreement of merger (as such term is used in Section 251 of the Corporation Law) set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. (b) The Company shall, as As promptly as reasonably practicable following after the date execution and delivery of this Agreement, Target, acting through its Board of Directors, shall, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date forapplicable Law, duly call, give notice of, andconvene and hold a special meeting of its stockholders, after which meeting shall be held as promptly as practicable following the mailing preparation of the Proxy Statement, convene and hold a meeting of its stockholders (the “Special Meeting”) for the purpose of obtaining considering and taking action upon the Requisite Stockholder Approval required in connection with approval of this Agreement and the Merger, and Target agrees that this Agreement and the Merger shall be submitted at such meeting. Subject to Section 7.2(c), Target shall use its reasonable best efforts to cause such meeting solicit and obtain from its stockholders proxies, and shall take all other action necessary and advisable to occur as soon as reasonably practicable. Except as specifically permitted secure the vote of stockholders required by Section 5.02applicable Law and by the Charter of Target or the Bylaws of Target to obtain their adoption of this Agreement and approval of the Merger, and the Board of Directors of the Company Target shall continue to recommend that the Company’s stockholders of Target vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) contained in this Agreement and the Company approval of the Merger at the Stockholders Meeting, and Target shall use its reasonable best efforts to obtain include in the Requisite Stockholder Approval in order to consummate Proxy Statement such recommendation of the Board of Directors of Target that the stockholders of Target adopt this Agreement and approve the Merger. Without limiting the generality of the foregoing, Target agrees that its obligations pursuant to the first sentence of this Section 7.1(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to Target or any Target Subsidiary or any of their respective Affiliates (or any of their respective officers, directors, employees or Representatives) of any Acquisition Proposal, (ii) the withdrawal, amendment, qualification or modification by the Board of Directors of Target for any reason of its approval or recommendation of this Agreement or the Merger or (iii) the approval or recommendation by the Board of Directors of Target of any Acquisition Proposal.