Common use of Proxy Statement; Stockholders Meeting Clause in Contracts

Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than the 100th day after the date hereof (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) the issuance and sale to the Investors of the Securities pursuant to Nasdaq Marketplace Rule 4350(i)(1)(B) (the “Proposal”). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Investors thereof. (b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal (the “Company Board Recommendation”) and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Delaware General Corporation Law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposal and (ii) submit the Proposal at the Stockholders Meeting to the stockholders of the Company for their approval.

Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the The Company shall take all action necessary to call a an annual meeting of its stockholders (the “"Stockholders Meeting”"), which shall occur conclude not later than the 100th day after the date hereof December 31, 2006 (the “"Stockholders Meeting Deadline”"), for the purpose of of, among other things, seeking approval of the Company’s 's stockholders for the following proposals (collectively, the "Proposals"): (i) the issuance and sale to the Investors of the Securities Notes and applicable Warrant Shares pursuant to Nasdaq Marketplace Rule 4350(i)(1)(B4350(i) and (ii) the “Proposal”)Amendment. In connection therewith, the Company will promptly will, in accordance with its customary practice for annual meetings, prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “"Proxy Statement”") and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s 's obligations under the 1934 Act, the Company will promptly inform the Investors thereof. (b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s 's Board of Directors after consultation with the Company’s 's outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Proposal Proposals (the “"Company Board Recommendation”") and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal Proposals unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s 's outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s 's stockholders. Whether or not the Company’s 's Board of Directors modifies, amends or withdraws the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Delaware General Corporation Law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposal Proposals and (ii) submit the Proposal Proposals at the Stockholders Meeting to the stockholders of the Company for their approval. (c) The Company shall file the Amendment with the Secretary of State of the State of Delaware no later than the close of business on the date the Proposals are approved by the Company's stockholders in accordance with this Section 7.9.

Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement Agreement, the Company shall take all action necessary to call a meeting of its stockholders (together with any adjournments or postponements thereof, the “"Stockholders Meeting”), which shall occur not later than the 100th day after the date hereof (the “Stockholders Meeting Deadline”), ") for the purpose of seeking approval of the Company’s 's stockholders (the "Stockholder Approvals") for (i) the issuance and sale to the Investors of the Securities pursuant and any other actions necessary to Nasdaq Marketplace Rule 4350(i)(1)(B) meet the Second Closing Conditions (the “"Proposal”"). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement statement(as amended or supplemented, the "Proxy Statement") and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in such proxy materials; provided that no Investor shall be obliged to furnish any such information if there has been no change in such Investor's beneficial ownership (as defined under the Proxy StatementExchange Act) of Common Stock since the date of this Agreement. The Company will comply with Section 14(a) of the 1934 Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement which, at the time and in the light of a the circumstances under which it is made, is false or misleading with respect to any material fact fact, or omit which omits to state any material fact necessary in order to make the statements made therein not false or misleading, misleading or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or a proxy for the Stockholders Meeting or the subject matter thereof which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, Second Closing any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s 's obligations under the 1934 Exchange Act, the Company will promptly inform its stockholders and the Investors thereof. (b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s 's Board of Directors after consultation with the Company’s 's outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders (and not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal (and shall cause the “Company Board Recommendation”) and to take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s stockholdersStockholder Approvals. Whether or not the Company’s 's Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws the Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany's stockholders, the Company shall is required to, and will take, in accordance with Section 146 of the Delaware General Corporation Law applicable law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, practicable to consider and vote upon the approval of the Proposal and Proposal. (iic) submit In the Proposal event that the Company's Board of Directors has withdrawn or modified its recommendation to stockholders pursuant to the provisions of Section 5.4(b), upon termination of the Agreement in accordance with its terms the Company shall pay to the Investors, pro rata based on their pro rata share of the aggregate purchase price, a breakup fee equal to the aggregate amount invested by the Investors at the Stockholders Meeting to the stockholders of the Company for their approvalFirst Closing in cash.

Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than the 100th day after the date hereof June 13, 2005 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) the issuance and sale to the Investors of the Securities pursuant to Nasdaq Marketplace Rule 4350(i)(1)(B) in connection with Amex rules (the “Proposal”). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading; provided, however, that the Company shall not be liable for any breach of this Section 7.9 to the extent that an untrue statement of a material fact or an omission to state a material fact in the Proxy Statement was made by the Company in reliance upon and in conformity with information concerning the Investors furnished in writing to the Company by the Investors specifically for use in the Proxy Statement. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s 's obligations under the 1934 Act, the Company will promptly inform the Investors thereof. (b) Notwithstanding the foregoing, the Investors shall not be entitled to vote any Securities acquired in the First Closing, including, without limitation, any Conversion Shares, on the Proposal at the Stockholders Meeting. (c) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders (and, subject to their fiduciary obligations, not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal (and shall cause the “Company Board Recommendation”) and to take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s stockholdersProposal. Whether or not the Company’s 's Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws the Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany’s stockholders, the Company shall be required to, and will take, in accordance with Section 146 of the Delaware General Corporation Law applicable law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposal and (ii) submit the Proposal at the Stockholders Meeting to the stockholders of the Company for their approvalProposal.

Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the The Company shall take all action necessary to call a an annual meeting of its stockholders (the “"Stockholders Meeting”"), which shall occur conclude not later than the 100th day after the date hereof December 31, 2006 (the “"Stockholders Meeting Deadline”"), for the purpose of of, among other things, seeking approval of the Company’s 's stockholders for the following proposals (collectively, the "Proposals"): (i) the issuance and sale to the Investors of the Securities Conversion Shares and the Warrant Shares pursuant to Nasdaq Marketplace Rule 4350(i)(1)(B4350(i) and (ii) the “Proposal”)Amendment. In connection therewith, the Company will promptly will, in accordance with its customary practice for annual meetings, prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “"Proxy Statement”") and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s 's obligations under the 1934 Act, the Company will promptly inform the Investors thereof. (ba) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s 's Board of Directors after consultation with the Company’s 's outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Proposal Proposals (the “"Company Board Recommendation”") and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal Proposals unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s 's outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s 's stockholders. Whether or not the Company’s 's Board of Directors modifies, amends or withdraws the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Delaware General Corporation Law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposal Proposals and (ii) submit the Proposal Proposals at the Stockholders Meeting to the stockholders of the Company for their approval. (b) The Company shall file the Amendment with the Secretary of State of the State of Delaware no later than the close of business on the date the Proposals are approved by the Company's stockholders in accordance with this Section 7.9.

Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than the 100th day after the date hereof (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) the issuance and sale to the Investors of the Securities pursuant and the issuance and sale to Nasdaq Marketplace Rule 4350(i)(1)(B) the Other Investors of the Other Securities (the “Proposal”). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliatesAffiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s 's obligations under the 1934 Act, the Company will promptly inform the Investors thereof. (b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal (the “Company Board Recommendation”) and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Delaware General Corporation Law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposal and (ii) submit the Proposal at the Stockholders Meeting to the stockholders of the Company for their approval.

Proxy Statement; Stockholders Meeting. (a) Promptly As promptly as practicable following the execution and delivery date of this Agreement Agreement, the Company shall take prepare and file with the SEC the Proxy Statement, and the Company shall use all action necessary reasonable efforts to call respond as promptly as practicable to any comments of the SEC with respect thereto and to cause the Proxy Statement to be mailed to the stockholders of the Company as promptly as practicable following the date of this Agreement. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or the staff of the SEC or any request from the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and the staff of the SEC, on the other hand, relating to the Proxy Statement. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC or the staff of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and comment on such document or response and (ii) shall include in such document or response all comments reasonably proposed by Parent. Whenever any event occurs which is required to be set forth in an amendment or supplement to the Proxy Statement, the Company or Parent, as the case may be, will promptly inform the other of such occurrence and cooperate in filing with the SEC and/or mailing to stockholders of the Company such amendment or supplement. (b) The Company shall, as soon as practicable following the date of this Agreement, establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the “"Stockholders Meeting”), which shall occur not later than the 100th day after the date hereof (the “Stockholders Meeting Deadline”), ") solely for the purpose of seeking obtaining the Stockholder Approval. Subject to Section 5.02(b), the Company shall, through its Company Board, recommend that the Company's stockholders vote in favor of the adoption and approval of this Agreement and approval of the Company’s stockholders for (i) the issuance Merger and sale to the Investors of the Securities pursuant to Nasdaq Marketplace Rule 4350(i)(1)(B) (the “Proposal”). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail include such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion recommendation in the Proxy Statement. The Subject to Section 5.02(b), the Company will comply with Section 14(a) use all reasonable efforts to solicit from its stockholders proxies in favor of the 1934 Act adoption and approval of this Agreement and approval of the rules promulgated thereunder Merger, and will take all other action necessary or advisable under applicable Law to secure Stockholder Approval. Notwithstanding anything to the contrary contained in relation to any proxy statement (as amended or supplementedthis Agreement, the “Proxy Statement”) and any form of proxy to be sent Company may adjourn or postpone the Stockholders' Meeting to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact extent necessary to correct ensure that any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a necessary supplement or amendment to the Proxy StatementStatement is provided to its stockholders in advance of a vote on the Merger and this Agreement or, in addition to if as of the Company’s obligations under time for which the 1934 Act, the Company will promptly inform the Investors thereof. (b) Subject to their fiduciary obligations under applicable law Stockholders' Meeting is originally scheduled (as determined set forth in good faith the Proxy Statement) there are insufficient Shares represented (either in person or by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal (the “Company Board Recommendation”) and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standingproxy) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Delaware General Corporation Law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action constitute a quorum necessary to convene conduct the business of such Stockholders' Meeting; provided that any Stockholders Meeting so adjourned or postponed shall be held as promptly as practicable, but no later than permitted by the Stockholders Meeting Deadline, to consider and vote upon the approval organizational documents of the Proposal and (ii) submit the Proposal at the Stockholders Meeting to the stockholders of the Company for their approvalCompany.

Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “"Stockholders Meeting”"), which shall occur not later than the 100th day after the date hereof April 30, 2004 (the “"Stockholders Meeting Deadline”), ") for the purpose of seeking approval of the Company’s 's stockholders for (i) the issuance and sale to the Investors of the Securities pursuant Shares and (ii), subject to Nasdaq Marketplace Rule 4350(i)(1)(B) Section 7.10 below, the Reverse Split (collectively, the “Proposal”"Proposals"). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “"Proxy Statement”") and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s 's obligations under the 1934 Act, the Company will promptly inform the Investors thereof. (b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s 's Board of Directors after consultation with the Company’s 's outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders (and, subject to their fiduciary obligations, not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal (Proposals and shall cause the “Company Board Recommendation”) and to take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s stockholdersProposals. Whether or not the Company’s 's Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws the Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany's stockholders, the Company shall be required to, and will take, in accordance with Section 146 of the Delaware General Corporation Law applicable law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposal and Proposals. (iic) submit the Proposal No Investor shall vote or cause any Person to vote on its behalf any Conversion Shares, Interest Shares, Warrant Shares or Other Shares, if any, then owned by it at the Stockholders Meeting to the stockholders of the Company for their approvalMeeting.

Proxy Statement; Stockholders Meeting. (a) Promptly As promptly as practicable following the execution and delivery date of this Agreement Agreement, the Company shall take prepare and file with the SEC the Proxy Statement, and the Company shall use all action necessary reasonable efforts to call respond as promptly as practicable to any comments of the SEC with respect thereto and to cause the Proxy Statement to be mailed to the stockholders of the Company as promptly as practicable following the date of this Agreement. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or the staff of the SEC or any request from the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and the staff of the SEC, on the other hand, relating to the Proxy Statement. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC or the staff of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and comment on such document or response and (ii) shall include in such document or response all comments reasonably proposed by Parent Whenever any event occurs which is required to be set forth in an amendment or supplement to the Proxy Statement, the Company or Parent, as the case may be, will promptly inform the other of such occurrence and cooperate in filing with the SEC and/or mailing to stockholders of the Company such amendment or supplement. (b) The Company shall, as soon as practicable following the date of this Agreement, establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders "Stockholders' Meeting”), which shall occur not later than the 100th day after the date hereof (the “Stockholders Meeting Deadline”), ") solely for the purpose of seeking obtaining the Stockholder Approval. Subject to Section 6.3 below, the Company shall, through its Board of Directors, recommend that the Company's stockholders vote in favor of the adoption and approval of this Agreement and approval of the Company’s stockholders for (i) the issuance Merger and sale to the Investors of the Securities pursuant to Nasdaq Marketplace Rule 4350(i)(1)(B) (the “Proposal”). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail include such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion recommendation in the Proxy Statement. The Subject to Section 6.3(d), the Company will comply with Section 14(a) use all reasonable efforts to solicit from its stockholders proxies in favor of the 1934 Act adoption and approval of this Agreement and approval of the rules promulgated thereunder Merger, and will take all other action necessary or advisable under applicable Law to secure Stockholder Approval. Notwithstanding anything to the contrary contained in relation to any proxy statement (as amended or supplementedthis Agreement, the “Proxy Statement”) and any form of proxy to be sent Company may adjourn or postpone the Stockholders' Meeting to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact extent necessary to correct ensure that any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a necessary supplement or amendment to the Proxy StatementStatement is provided to its stockholders in advance of a vote on the Merger and this Agreement or, in addition to if as of the Company’s obligations under time for which the 1934 Act, the Company will promptly inform the Investors thereof. (b) Subject to their fiduciary obligations under applicable law Stockholders' Meeting is originally scheduled (as determined set forth in good faith the Proxy Statement) there are insufficient Shares represented (either in person or by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal (the “Company Board Recommendation”) and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standingproxy) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Delaware General Corporation Law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action constitute a quorum necessary to convene conduct the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval business of the Proposal and (ii) submit the Proposal at the Stockholders Meeting to the stockholders of the Company for their approvalsuch Stockholders' Meeting.

Proxy Statement; Stockholders Meeting. (a) Promptly As promptly as possible, but in no event later than 15 business days following the execution and delivery of this Agreement Closing, the Company shall take all action necessary to call a meeting of its stockholders (together with any adjournments or postponements thereof, the “Stockholders Meeting”), which shall occur not later than the 100th day after the date hereof (the “Stockholders Meeting Deadline”), ) for the purpose of seeking approval of the Company’s stockholders Required Stockholder Approval for (i) the issuance and sale to the Investors of the Securities pursuant to Nasdaq Marketplace Rule 4350(i)(1)(B) (the “Proposal”). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement (as amended or supplemented, the “Proxy Statement”) and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC Commission thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in such proxy materials; provided that no Investor shall be obliged to furnish any such information if there has been no change in such Investor’s beneficial ownership (as defined under the Proxy StatementExchange Act) of Common Stock since the Closing Date. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement which, at the time and in the light of a the circumstances under which it is made, is false or misleading with respect to any material fact fact, or omit which omits to state any material fact necessary in order to make the statements made therein not false or misleading, misleading or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or a proxy for the Stockholders Meeting or the subject matter thereof which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, Meeting any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform its stockholders and the Investors thereof. (b) Subject to their its fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders (and not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal (and shall cause the “Company Board Recommendation”) and to take all commercially reasonable action (including, without limitation, excluding the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s stockholdersRequired Stockholder Approval. Whether or not the Company’s 's Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws the Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany’s stockholders, the Company shall is required to, and will take, in accordance with Section 146 of the Delaware General Corporation Law applicable law and the provisions of its Certificate Articles of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, practicable to consider and vote upon the approval of the Proposal Proposal. (c) Each Investor agrees to use best efforts to vote all the Shares, Underlying Shares (if any are outstanding) and (ii) submit the Proposal at the Stockholders Meeting to the stockholders other shares of Common Stock Owned by such Investor in favor of the Company for their approvalProposal.