Common use of Proxy Statement Clause in Contracts

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The Company shall use its reasonable best efforts to promptly prepare and file with the SEC, SEC as promptly as reasonably practicable after the date hereof but a preliminary Proxy Statement (and in any event no event later than 30 days after following the Initial Closing, preliminary proxy materials with respect to a meeting date of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above); provided, however, that (a) each of the Company, Freeport and Purchaser shall cooperate with each other in the preparation of the Proxy Statement (including the preliminary Proxy Statement) and any amendment or supplement to the preliminary Proxy Statement with respect to the provisions in such Proxy Statement (including the preliminary Proxy Statement) addressing the issuance of the Securities (and, for the avoidance of doubt, excluding provisions solely addressing the PXP Transaction) and (b) the Company shall furnish such preliminary Proxy Statement to Freeport and Purchaser and give Freeport, Purchaser and their legal counsel a reasonable opportunity to review such preliminary Proxy Statement prior to filing with the SEC and shall cooperate with Freeport and Purchaser with respect to additions, deletions or changes suggested by Freeport and Purchaser in connection therewith with respect to the provisions in such Proxy Statement (including the preliminary Proxy Statement) addressing the issuance of the Securities (and, for the avoidance of doubt, excluding provisions solely addressing the PXP Transaction). The Company shall promptly notify Freeport and Purchaser of the receipt of any comments of the SEC staff with respect to the preliminary Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Freeport and Purchaser, as promptly as reasonably practicable, copies of all written correspondence between the Company or any representative of the Company and the SEC with respect to the Proxy Statement. If comments are received from the SEC staff with respect to the preliminary Proxy Statement, the Company shall use its commercially reasonable efforts to respond as promptly as reasonably practicable to the comments of the SEC staff. The Company shall provide Freeport, Purchaser and their legal counsel with a reasonable opportunity to review any amendment or supplement to each of the preliminary and the definitive Proxy Statement prior to filing with the SEC and shall cooperate with Freeport and Purchaser with respect to additions, deletions or changes suggested by Freeport and Purchaser in connection therewith with respect to the provisions in such Proxy Statement (including the preliminary Proxy Statement) addressing the issuance of the Securities (and, for the avoidance of doubt, excluding provisions solely addressing the PXP Transaction). Freeport and Purchaser shall promptly provide the Company with such information as may be required to be included in the Proxy Statement or as may be reasonably required to respond to any comment of the SEC staff. After all the comments received from the SEC have been cleared by the SEC staff and all information required to be contained in the Proxy Statement has been included therein by the Company, the Company shall promptly file the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed (including by electronic delivery if permitted) as promptly as practicable, to its stockholders of record, as of the record date established by the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The Company shall use take all action necessary in accordance with applicable Law and its reasonable best efforts articles of incorporation and bylaws and Nasdaq rules to prepare call, give notice of, convene and file hold a special meeting of the Company’s shareholders (including any adjournment or postponement thereof, the “Company Special Meeting”) as soon as practicable following the date hereof for the purpose of approving this Agreement and, in connection with the SECCompany Special Meeting, as promptly soon as practicable after the date hereof but in no event later than 30 days after the Initial ClosingCompany shall prepare and file with the SEC a proxy statement (together with all amendments and supplements thereto, preliminary proxy materials with respect the “Proxy Statement”) relating to a meeting the Merger and this Agreement and furnish the information required to be provided to the shareholders of the stockholders for Company pursuant to the purpose of approving OBCA and the issuance of shares of Preferred Stock upon conversion of the Notes in accordance Exchange Act, which Proxy Statement shall be reasonably satisfactory to Parent. Promptly after its preparation and prior to its filing with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterSEC, the Company shall as promptly as possible file with provide a copy of the SEC Proxy Statement, and any amendment to the definitive proxy statement Proxy Statement, to Parent, and acting through will consider inclusion into the Proxy Statement comments timely received from Parent or its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion counsel. The Company shall give Parent notice of any comments on the Proxy Statement received by the SEC, and shall promptly respond to SEC review of the preliminary proxy materialscomments, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes if any. Unless this Agreement is previously terminated in accordance with Section 8.1, the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) Proxy Statement shall include in the proxy statement the recommendation of its Board the Company’s board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, directors that the Board of Directors may withdraw or adversely modify their recommendation of Company’s shareholders approve this Agreement (the issuances referred to in clause (i) above “Company Recommendation”). Notwithstanding the foregoing, if the Board Company’s board of Directors directors determines in good faith (faith, after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that calling, giving notice of, convening or holding the issuances referred to in clause (i) above are not Company Special Meeting, or preparing and distributing the Proxy Statement, or including a Company Recommendation in the best interests Proxy Statement may be inconsistent with the directors’ fiduciary duties under applicable Law following an indication of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) abovean Acquisition Proposal, the Company will pay to may delay any such action until the Purchasers (based on their pro rata percentage Company’s board of the aggregate Purchase Price) directors determines in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereundergood faith, payable within two (2) business days of after consultation with its counsel, that it may take such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgaction.

Proxy Statement. Promptly following the date of this Agreement, the Company shall prepare the Proxy Statement, and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included. The Company shall use its reasonable best efforts as promptly as practicable to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use its best efforts to prepare and file with cause the SEC, Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. The Company shall also take any action required to be taken under any applicable state securities laws in connection with the registration and qualification in connection with the Merger of common stock of the Company following the Merger. The information provided by the Company for use in the Form S-4, and to be supplied by Newco in writing specifically for use in the Form S-4, shall, at the time the Form S-4 becomes effective and on the date hereof but of the Stockholders Meeting referred to above, be true and correct in no event later than 30 days all material respects and shall not omit to state any material fact required to be stated therein or necessary in order to make such information not misleading, and the Company and Newco each agree to correct any information provided by it for use in the Form S-4 which shall have become false or misleading. Newco and the Company will cooperate with each other in the preparation of the Proxy Statement; without limiting the generality of the foregoing, the Company will immediately notify Newco of the receipt of any comments from the SEC and any request by the SEC for any amendment to the Proxy Statement or for additional information. All filings with the SEC, including the Proxy Statement and any amendment thereto, and all mailings to the Company's stockholders in connection with the Merger, including the Proxy Statement, shall be subject to the prior review, comment and approval of Newco (which approval by Newco shall not be unreasonably withheld). Newco will furnish to the Company the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement. The Company agrees to use its best efforts, after consultation with the Initial Closingother parties hereto, preliminary proxy materials to respond promptly to any comments made by the SEC with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes Proxy Statement and the issuance of the Warrants any preliminary version thereof filed by it and cause such Proxy Statement to be issued at mailed to the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held Company's stockholders at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgtime.

Proxy Statement. The Company GSE and Parent (for itself and Merger Sub) shall use its reasonable best efforts to prepare cooperate in the preparation and file prompt filing of a Proxy Statement with the SEC, as promptly as practicable after Commission under the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials Exchange Act with respect to a the meeting of GSE's stockholders called for the purpose of, among other things, securing stockholder approval of the merger contemplated by this Agreement. Each of GSE and Parent (for itself and Merger Sub) shall use all reasonable efforts to have the Proxy Statement cleared by the Commission. The Proxy Statement shall contain statements of GSE's board of directors that it has (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are fair to and in the best interests of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes Company, (ii) declared the Merger and this Agreement to be advisable and (iii) recommended unanimously that the stockholders of the Company vote in favor of the approval of the Merger and the adoption of this Agreement, which recommendations shall not be withdrawn, amended or modified in a manner adverse to Parent or Merger Sub (unless withdrawn, modified or changed in accordance with the terms of Paragraph 4.2.11). Parent and its counsel shall be given an opportunity to review and comment upon the Notes Proxy Statement and any amendment or supplement thereto and any response to comments from the issuance Commission prior to the filing thereof with the Commission, and GSE shall consider any such comments in good faith. GSE agrees to provide to Parent and its counsel any comments which GSE or its counsel may receive from the staff of the Warrants Commission with respect to the Proxy Statement promptly after receipt thereof. Parent (for itself and Merger Sub) will promptly supply to the Company in writing, for inclusion in the Proxy Statement, all information concerning Parent and Merger Sub required by law, rule or regulation to be issued at included in the Second Closing as contemplated by this AgreementProxy Statement. Thereafter, Each of GSE and Parent (for itself and Merger Sub) shall use reasonable efforts to cause the Company shall Proxy Statement to be mailed to GSE's stockholders as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.practicable;

Proxy Statement. The Company shall agrees to use its commercially reasonable best efforts to prepare and file with the SEC, SEC as promptly soon as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary a proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants statement to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting sent to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board connection with a meeting of Directors may withdraw or adversely modify their recommendation holders of the issuances referred Common Stock (including any adjournment or postponement thereof, the “Stockholders Meeting”) to consider the NYSE American Approval, the Delaware Charter Approval and such other matters as the Company in clause its reasonable determination may present at the Stockholders Meeting (ithe “Proxy Statement”). The Proxy Statement shall comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. The Company will, (1) above if the Board of Directors determines in good faith at least five (after consultation with its financial advisors and legal counsel5) that from a financial point of view Business Days prior to the stockholders initial anticipated filing of the CompanyProxy Statement or any amendment or supplement thereto (or, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests case of an amendment, supplement or definitive form of the Company's stockholders. In Proxy Statement that does not materially differ from the event that previously provided Proxy Statement, as far in advance as is reasonably practicable in the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) abovecircumstances), the Company will pay furnish to the Purchasers Noteholders copies of such documents proposed to be filed and (based on their pro rata percentage of 2) use its commercially reasonable efforts to address in each such document prior to being so filed with the aggregate Purchase Price) in immediately available funds an amount in cash SEC such comments as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable such Noteholder or its counsel reasonably shall propose within two (2) business days Business Days of receipt of such withdrawal copies by the Noteholder. The Company shall use its commercially reasonable efforts to (A) clear any comments provided by the SEC with respect to the Proxy Statement as promptly as reasonably practicable after receipt thereof, and (B) mail or modification. Neither prior otherwise deliver (or cause to nor at be mailed or otherwise delivered) the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, Proxy Statement to the holders of the Company’s Common Stock promptly after, and hold the Stockholders Meeting for their approval the purposes of obtaining the Shareholder Approvals not later than sixty (60) calendar days after, (x) the first Business Day following the 10th calendar day after the Proxy Statement in preliminary form has been filed with the SEC if the SEC has not informed the Company that it intends to review the Proxy Statement by such 10th calendar day or (y) the 10th calendar day after the SEC has informed the Company that it has no further comments on the Proxy Statement. The board of directors of the Company shall not withdraw, qualify or modify in a manner adverse to the Noteholders, or publicly propose to withdraw, qualify or modify in a manner adverse to the Noteholders, its recommendation of the Shareholder Approvals. The Company shall not postpone or adjourn the Stockholders Meeting without the prior written consent of Warburgthe Noteholders.

Proxy Statement. The In connection with the Stockholders’ Meeting, the Company shall (a) as promptly as reasonably practicable prepare the Proxy Statement and file the Proxy Statement with the SEC as promptly as reasonably practicable and in any event within twenty (20) business days following the date of this Agreement, in form and substance reasonably satisfactory to each of the Company and Parent, (b) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings, (c) as promptly as reasonably practicable prepare and file (after Parent and Purchaser have had a reasonable opportunity to review and comment on) any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law, (d) use its reasonable best efforts to prepare have the SEC confirm that it has no further comments on the Company Proxy Statement and will thereafter mail to its stockholders as promptly as reasonably practicable the Proxy Statement and all other customary proxy or other materials for meetings such as the Stockholders’ Meeting, (e) to the extent required by applicable Law, as promptly as reasonably practicable prepare, file and distribute to the Company stockholders any supplement or amendment to the Proxy Statement if any event shall occur which requires such action at any time prior to the Stockholders’ Meeting, and (f) otherwise use reasonable best efforts to comply with all requirements of Law applicable to the Stockholders’ Meeting and the Merger. Subject to Section 7.5, the Proxy Statement shall reflect the Company Board Recommendation and shall include a description of the other Board actions. The Company shall also include in the Proxy Statement, and represents that it has obtained all necessary consents of the Company’s financial advisors to permit the Company to include in the Proxy Statement, in its entirety, the fairness opinion described in Section 4.30, together with a summary thereof. Parent, Purchaser and the Company shall cooperate with each other in the preparation of the Proxy Statement, and the Company shall promptly notify Parent of the receipt of any comments of the SEC with respect to the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Parent copies of all correspondence and summaries of all oral exchanges between the Company or any representative of the Company and the SEC. The Company shall promptly provide Parent and its counsel the opportunity to review the Proxy Statement, including all amendments and supplements thereto, prior to its being filed with the SEC, as promptly as practicable after and shall give Parent and its counsel the date hereof but in no event later than 30 days after opportunity to review all responses to requests for additional information and replies to comments (including giving due consideration to the Initial Closingreasonable additions, preliminary proxy materials with respect deletions or changes suggested thereto by Parent and its counsel) prior to a meeting their being filed with, or sent to, the SEC. Each of the stockholders for Company, Parent and Purchaser agrees to use its reasonable best efforts, after consultation with the purpose other parties hereto, to respond promptly to all such comments of approving and requests by the issuance SEC and to cause the Proxy Statement and all required amendments and supplements thereto to be mailed to the holders of shares Company Shares entitled to vote at the Stockholders’ Meeting at the earliest practicable time. If, at any time prior to the Effective Time, any information relating to the Company, Parent or Purchaser or any of Preferred Stock upon conversion their respective affiliates should be discovered by the Company, Parent or Purchaser 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 Notes in accordance with circumstances under which they are made, not misleading, the terms of party that discovers such information shall promptly notify the Notes and other parties and, to the issuance of the Warrants to be issued at the Second Closing as contemplated extent required by this Agreement. Thereafterapplicable Law, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve disseminate an appropriate amendment thereof or supplement thereto describing such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view information to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's ’s stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The Company shall prepare and file with the SEC 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 and the rules and regulations thereunder. Each of Parent and Merger Sub shall furnish to the Company the information relating to it required by the Exchange Act and the rules and regulations thereunder to be included in the Preliminary Proxy Statement. 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 respond promptly 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 at the earliest reasonably practicable date and shall use its reasonable best efforts (subject to prepare and file with Section 5.02) to obtain the SEC, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting necessary approval of the stockholders for Merger by its stockholders. If, at any time prior to the purpose Special Meeting, any information relating to the Company, Parent, Merger Sub, any of approving their respective Affiliates, this Agreement or the issuance 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 shares of Preferred Stock upon conversion 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 Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereaftercircumstances under which they are made, not misleading, the Company party that discovers such information shall as promptly as possible file notify the other party, and an appropriate amendment or supplement describing such information shall be filed with the SEC and to the definitive proxy statement and acting through its Board of Directorsextent required by applicable Law, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view disseminated to the stockholders of the Company. Except as Section 5.02 expressly permits, based solely on facts or conditions arising after the date hereof, that Proxy Statement shall include the issuances referred to in clause (i) above are not in the best interests recommendation of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred Company that the stockholders adopt the agreement of merger set forth in this Agreement. The Company shall give Parent reasonable opportunity to in clause (i) abovereview and comment upon the Preliminary Proxy Statement, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal Proxy Statement and any amendment or modification. Neither prior to nor at the Special Meeting shall supplement thereon and the Company put forth shall give due consideration to any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgParent’s comments thereto.

Proxy Statement. The If required under applicable law, the Company shall use its reasonable best efforts to prepare and the Proxy Statement, file it with the SEC, SEC under the Exchange Act as promptly as practicable after Merger Subsidiary purchases Shares pursuant to the date hereof but Offer, and use all commercially reasonable efforts to have the Proxy Statement cleared by the SEC. Parent and Merger Subsidiary shall promptly furnish to the Company all information concerning Parent and Merger Subsidiary that may be required or reasonably requested in no event later than 30 days after connection with any action contemplated by this Section 6.10. Parent, Merger Subsidiary and the Initial ClosingCompany shall cooperate with each other in the preparation of the Proxy Statement, preliminary proxy materials and the Company shall notify Parent of the receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of all correspondence between the Company or any Representative of the stockholders Company and the SEC. The Company shall give Parent and its counsel a reasonable opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give Parent and its counsel a reasonable opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the purpose of approving the issuance of shares of Preferred Stock upon conversion SEC. Each of the Notes in accordance Company, Parent and Merger Subsidiary agrees to use its commercially reasonable efforts, after consultation with the terms other parties hereto to respond promptly to all such comments of and requests by the Notes and SEC. As promptly as practicable after the issuance of Proxy Statement has been cleared by the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterSEC, the Company shall as promptly as possible file with mail the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view Proxy Statement to the stockholders of the Company, based solely on facts or conditions arising after . The Proxy Statement shall include the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that recommendation by the Board of Directors withdraws of the Company that the Company's stockholders vote to approve the Merger and this Agreement unless the Board of Directors of the Company has withdrawn or adversely modifies modified its recommendation in accordance with the provisions of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgSection 6.03.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as promptly as practicable after the date hereof but of this Agreement, and in no any event later than 30 days within 20 Business Days after the Initial Closingdate of this Agreement, a preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants statement to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view sent to the stockholders of the CompanyCompany in connection with the Stockholders Meeting (such proxy statement, based solely on facts as amended or conditions arising after supplemented, the date hereof“Proxy Statement”). Parent, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, Merger Sub and the Company will pay cooperate and consult with each other in the preparation of the Proxy Statement and any amendments or supplements thereto. Without limiting the generality of the foregoing, each of Parent and Merger Sub will furnish to the Purchasers Company the information relating to it and its subsidiaries as required by the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement (based on their pro rata percentage or that is customarily included in proxy statements prepared in connection with transactions of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly type contemplated by this Agreement) and provide such other assistance as may be reasonably requested by the Company. The Company shall use its reasonable best efforts to resolve all SEC comments, if any, with respect to the Proxy Statement as promptly as practicable after receipt thereof. Each Party covenants that none of the information supplied or to be supplied by it for inclusion or incorporation in the Proxy Statement will, at the date it is filed with the SEC or first mailed to the Company’s stockholders or at the time of the Stockholders Meeting or at the time of any amendment or supplement thereof, 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 shall promptly notify Parent and Merger Sub of the receipt of any comments from the SEC with respect to the Proxy Statement and any request by the SEC for any amendment to the Proxy Statement or for additional information. If at any time prior to the Stockholders Meeting any information relating to Parent, Merger Sub or the Company, or any of their respective Affiliates, officers or directors, should be discovered by Parent, Merger Sub or the Company, which should 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 necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Party and, to the holders extent required by applicable Law, the Company shall promptly file with the SEC and disseminate to the stockholders of Common Stock the Company an appropriate amendment or supplement describing such information. Prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC or its staff with respect thereto, the Company shall provide Parent a reasonable opportunity to review and to propose comments on such document or response and consider in good faith such comments proposed by Parent for their approval without inclusion therein. Unless the prior written consent Company Board has made a Change of WarburgRecommendation in accordance with Section 6.3, the Recommendation shall be included in the Proxy Statement.

Proxy Statement. The If required under applicable Law, the Company shall use its reasonable best efforts to prepare and the Proxy Statement, file it with the SEC, SEC under the Exchange Act as promptly as practicable after Merger Subsidiary purchases Shares pursuant to the date hereof but Offer, and use all commercially reasonable efforts to have the Proxy Statement cleared by the SEC. Parent and Merger Subsidiary shall promptly furnish to the Company all information concerning Parent and Merger Subsidiary that may be required or reasonably requested in no event later than 30 days after connection with any action contemplated by this Section 6.10. Parent, Merger Subsidiary and the Initial ClosingCompany shall cooperate with each other in the preparation of the Proxy Statement, preliminary proxy materials and the Company shall notify Parent of the receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of all correspondence between the Company or any Representative of the stockholders Company and the SEC. The Company shall give Parent and its counsel a reasonable opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give Parent and its counsel a reasonable opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the purpose of approving the issuance of shares of Preferred Stock upon conversion SEC. Each of the Notes in accordance Company, Parent and Merger Subsidiary agrees to use its commercially reasonable efforts, after consultation with the terms other parties hereto to respond promptly to all such comments of and requests by the Notes and SEC. As promptly as practicable after the issuance of Proxy Statement has been cleared by the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterSEC, the Company shall as promptly as possible file with mail the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view Proxy Statement to the stockholders of the Company, based solely on facts or conditions arising after . The Proxy Statement shall include the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that recommendation by the Board of Directors withdraws of the Company that the Company’s stockholders vote to approve the Merger and this Agreement unless the Board of Directors of the Company has withdrawn or adversely modifies modified its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) accordance with Section 6.03 in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgconnection with a Superior Proposal.

Proxy Statement. The If approval of the Company’s stockholders is required by Delaware Law in order to consummate the Merger other than pursuant to Section 253 of the DGCL, as soon as practicable following the Appointment Time, the Company and Parent shall jointly prepare, and the Company shall use its reasonable best efforts to prepare and file with the SEC, a proxy statement for use in connection with the solicitation of proxies from the Company’s stockholders in connection with the Merger and the Company Stockholders’ Meeting (the “Proxy Statement”). The Company and Parent, as the case may be, shall furnish all information concerning the Company or Parent as the other party hereto may reasonably request in connection with the preparation and filing with the SEC of the Proxy Statement. Subject to all applicable Legal Requirements, the Company shall use all commercially reasonable efforts to cause the Proxy Statement to be disseminated to the Company’s stockholders as promptly as practicable after following the date hereof but in no event later than 30 days after filing thereof with the Initial ClosingSEC. No filing of, preliminary proxy materials or amendment or supplement to, or correspondence with the SEC or its staff with respect to the Proxy Statement shall be made by the Company without providing Parent a meeting reasonable opportunity to review and comment thereon. The Company shall advise Parent, promptly after it receives notice thereof, of any request by the SEC or its staff for an amendment or revisions to the Proxy Statement, or comments thereon and responses thereto, or requests by the SEC or its staff for additional information in connection therewith. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company or Parent, or any of their respective directors, officers or affiliates, 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 would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereaftercircumstances under which they were made, not misleading, the Company party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Proxy Statement describing such information shall be promptly as possible file prepared and filed with the SEC and, to the definitive proxy statement and acting through its Board of Directorsextent required by applicable law, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view disseminated to the stockholders of the Company, based solely on facts or conditions arising after . The Company shall cause the date hereof, that Proxy Statement to comply as to form and substance in all material respects with the issuances referred to in clause (i) above are not in the best interests applicable requirements of the Company's stockholders. In Exchange Act and the event that the Board of Directors withdraws or adversely modifies its recommendation rules of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgNasdaq.

Proxy Statement. The Company shall use its reasonable best efforts Subject to the provisions of this Agreement and the Articles of Merger, FEC shall, as soon as reasonably practicable following the date of this Agreement, prepare and file with the SEC, SEC a proxy statement for the solicitation of proxies in favor of the transactions and agreements referred to in Section 4.3(c) (the "Proxy Statement"). FEC shall use all reasonable efforts to have the Proxy Statement cleared by the SEC for mailing in definitive form as promptly as practicable after such filing. FEC and St. Joe xxxll cooperate with each other in the date hereof but in no event later than 30 days after preparation of the Initial Closing, preliminary proxy materials Proxy Statement and any amendment or supplement thereto. FEC shall notify St. Joe xx the receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information, and shall provide to St. Joe xxxmptly copies of all correspondence between the SEC and FEC or any of its advisors with respect to the Proxy Statement. FEC shall give St. Joe xxx its counsel reasonably appropriate advance opportunity to review the Proxy Statement and all responses to requests for additional information by and replies to comments of the stockholders for SEC, and incorporate therein any reasonable comments St. Joe xxx xxxely deliver to FEC with respect thereto, before such Proxy Statement, response or reply is filed with or sent to the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants SEC. FEC agrees to be issued at the Second Closing as contemplated by this Agreement. Thereafteruse all reasonable efforts, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with St. Joe xxx its financial advisors advisors, to respond promptly to all such comments of, and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) aboverequests by, the Company will pay SEC and to cause the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal Proxy Statement to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, be mailed to the holders of FEC Common Stock entitled to vote at the Stockholders Meeting as soon as reasonably practicable following the execution hereof. St. Joe xxxll provide FEC such information concerning the business and affairs of St. Joe xxx Merger Sub as is reasonably required for their approval without inclusion in the prior written consent of WarburgProxy Statement.

Proxy Statement. The Company Seller will, as soon as practicable following the Execution Date (and in any event, within eight (8) Business Days following the Execution Date), prepare and file with the SEC the Proxy Statement in connection with the Stockholders Meeting in preliminary form. Seller shall cause the Proxy Statement to (i) comply with the applicable rules and regulations promulgated by the SEC and (ii) 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 were made, not misleading. Seller will use its reasonable best efforts to prepare and file with the SEC, respond as promptly as practicable after to any comments of the date hereof but SEC with respect thereto and will give Purchaser and its counsel reasonable opportunity to review and comment on the initial preliminary Proxy Statement and all subsequent forms or versions of or amendments or supplements to the Proxy Statement prior to the filing thereof with the SEC or dissemination to the stockholders and Seller shall give reasonable and good faith consideration to any timely comments thereon made by the other Party or its counsel. Seller will (i) notify Purchaser promptly (and in no event later than 30 days after any event, within twenty-four (24) hours) of the Initial Closingreceipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will promptly supply Purchaser with copies of all correspondence between Seller or any of its Representatives, preliminary proxy materials on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement (including copies of all comments from the SEC), (ii) provide Purchaser and its counsel with a meeting reasonable opportunity to review and comment on any proposed correspondence between it or any of its Representatives and on the one hand and the SEC or its staff on the other hand with respect to the Proxy Statement and shall give reasonable and good faith consideration to any comments thereon made by Purchaser or its counsel and (iii) promptly provide Purchaser with final copies of any correspondence sent by it or any of its Representatives to the SEC or its staff with respect to the Proxy Statement, and of any amendments or supplements to the Proxy Statement. If at any time prior to receipt of the Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, including correcting any information that has become false or misleading in any material respect, Seller will promptly prepare and deliver to its stockholders for such an amendment or supplement. Seller shall (i) commence mailing the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants Proxy Statement to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall Seller’s stockholders as promptly as possible file with practicable within three (3) Business Days of being informed by the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting staff that it does not plan to be held at the earliest practicable date but in provide comments or it has no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing further comments on the preliminary proxy materials and (y) the conclusion of any SEC review form of the preliminary proxy materialsProxy Statement, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders take all necessary action, including establishing a record date and completing a broker search pursuant to Section 14a-13 of the Common Stock approve such issuances referred Exchange Act in accordance with Section 6.8, to in clause (i) above; provided, however, that permit the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view foregoing. Subject to the stockholders terms and conditions of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, including Section 6.6, the Proxy Statement will include the Board Recommendation and the Board consents to such inclusion. The Proxy Statement shall include the holders notice of Common Stock for their approval without the prior written consent of WarburgStockholders Meeting.

Proxy Statement. If the Closing occurs, the Company shall call and hold a special meeting of its stockholders, as promptly as reasonably practicable after the Closing, but no later than six months following the Closing Date (the “Meeting End Date”) At the earlier of: (i) the Company’s 2022 Annual Meeting of Stockholders (to be held no later than June 30, 2022); or (ii) the first meeting of the Company’s stockholders called and held by the Company after the Common Stock is listed on the New York Stock Exchange or the Nasdaq Stock Market, the Company shall ask its stockholders to vote on proposals (collectively, the “Stockholder Proposal”) to approve the issuance of shares of Common Stock in connection with the conversion of the Debentures into shares of Common Stock pursuant to Section 4 of the Debentures and the right of each Purchaser to purchase shares of Common Stock pursuant to Section 4.3 hereof (“Stockholder Approval,” and the date on which such approval is obtained, the “Stockholder Approval Date”). The board of directors shall recommend to the Company’s stockholders that such stockholders approve the Stockholder Proposal, and shall not modify or withdraw such resolution. In connection with such meeting, the Company shall promptly prepare (and the Purchasers will reasonably cooperate with the Company to prepare) and file (but in no event more than 90 days following the Closing) with the SEC a preliminary proxy statement, shall use its reasonable best efforts to prepare solicit proxies for such stockholder approval and file with shall use its reasonable best efforts to respond to any comments of the SEC, SEC or its staff and to cause a definitive proxy statement related to such stockholders’ meeting to be mailed to the Company’s stockholders as promptly as practicable after clearance by the date hereof but in no SEC. If at any time prior to such stockholders’ meeting there shall occur any event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants that is required to be issued at set forth in an amendment or supplement to the Second Closing as contemplated by this Agreement. Thereafterproxy statement, the Company shall as promptly as possible file practicable prepare and mail to its stockholders such an amendment or supplement. The Company agrees that each proxy statement referred to in this Section 4.6 shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder and that none of the information included or incorporated by reference in any such proxy statement will, at the date it is filed with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view mailed to the stockholders of the CompanyCompany or at the time of the stockholders’ meeting, or at the time of any amendment or supplement thereof, 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, except for statements made in such proxy statement based solely exclusively on facts information supplied in writing by or conditions arising after on behalf of the date hereof, that Purchasers specifically and explicitly for inclusion or incorporation by reference therein. Each of the issuances referred Purchasers and the Company agrees promptly to in clause (i) above are not correct any information provided by it or on its behalf for use in the best interests proxy statement if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall as promptly as practicable prepare and mail to its stockholders an amendment or supplement to correct such information to the extent required by applicable laws and regulations. The Company shall consult with the Purchasers prior to mailing any proxy statement, or any amendment or supplement thereto, and provide the Purchasers with a reasonable opportunity to comment thereon. The Company shall promptly notify the Purchasers upon the receipt of any comments from the Company's stockholdersSEC or its staff or any request from the SEC or its staff for amendments or supplements to any proxy statement and shall provide the Purchasers with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. The directors’ recommendation described in this Section 4.6 shall be included in the proxy statement filed in connection with obtaining such stockholder approval. In the event that the Board of Directors withdraws or adversely modifies its recommendation approval of the issuances referred to in clause (i) aboveStockholder Proposal is not obtained at such special stockholders’ meeting, the Company will pay shall include a proposal to approve (and, the Purchasers board of directors shall recommend approval of) such Stockholder Proposal at a meeting of its stockholders (based which may be an annual meeting) no less than once in each six-month period beginning on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days Meeting End Date date of such withdrawal stockholders’ meeting until such approval is obtained or modification. Neither prior made, and the other applicable provisions of this Section 4.6 shall apply with respect to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgseeking such Stockholder Proposal.

Proxy Statement. The Company shall promptly after the date of this Agreement (but in any event no later than 10 business days following the date of this Agreement) prepare and file with the SEC a proxy statement in preliminary form relating to the Stockholders Meeting (such proxy statement, including any amendment or supplement thereto, the “Proxy Statement”). The Company shall promptly notify Parent of the receipt of all comments from the SEC with respect to the Proxy Statement and of any request by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Parent copies of all correspondence between the Company and/or any of its Representatives and the SEC with respect to the Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with promptly provide responses to the SEC, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials SEC with respect to a meeting all comments received on the Proxy Statement from the SEC. The Company shall cause the Proxy Statement to comply in all material respects with the applicable provisions of the stockholders for Exchange Act and the purpose of approving rules and regulations thereunder, and shall ensure that the issuance of shares of Preferred Stock upon conversion Proxy Statement includes: (i) the opinion of the Notes financial advisor referred to in Section 6.1(c)(ii); (ii) a fair summary of the financial analysis conducted by such financial advisor in accordance with the terms applicable Law; and (iii) disclosure of the Notes compensation, if any, paid to such financial advisor by Parent, the Company and any of their respective Affiliates, during the issuance three year period prior to the date of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterParent and the Company each agree that none of the information supplied by it for inclusion in the Proxy Statement will, at the date of mailing to stockholders of the Company or at the time of the Stockholders 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 were made, not misleading. The Company shall consult with Parent and provide Parent and its counsel with a reasonable opportunity to review and comment on the Proxy Statement and any amendments or supplements thereto (and to review and comment on any comments of the SEC or its staff on the Proxy Statement or any amendments or supplements thereto) and any other documents related to the Stockholders Meeting prior to filing such documents with the SEC or other applicable Governmental Authority and mailing such documents to the Company’s stockholders. The Company shall consider in good faith all comments reasonably proposed by Parent or its legal counsel on the Proxy Statement (or any amendments or supplements thereto) and such other documents related to the Stockholders Meeting. If any event relating to any of the Acquired Companies occurs, or if the Company becomes aware of any information, that should be disclosed in an amendment or supplement to the Proxy Statement, then the Company shall as promptly as possible inform Parent thereof and shall promptly file such amendment or supplement with the SEC the definitive proxy statement and acting through its Board of Directorsand, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materialsif appropriate, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve mail such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw amendment or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view supplement to the stockholders of the Company. The Company, based solely commencing upon the submission to the SEC of the Proxy Statement in accordance with the first sentence of this Section 7.3, shall on facts or conditions arising a weekly basis run a broker search for a deemed record date of 20 business days after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgsearch.

Proxy Statement. The Subject to Section 5.4, as promptly as reasonably practicable following the date of this Agreement, Company shall (with the assistance and cooperation of Buyer as reasonably requested by Company) take all action reasonably necessary to prepare, in accordance with applicable Law and the Company Organizational Documents, as applicable, proxy materials which shall constitute the Scheme Document and the proxy statement relating to the Scheme Meeting and the Company GM for the purpose of passing the Company Shareholder Resolutions (such proxy materials and proxy statement, as amended or supplemented from time to time, the “Proxy Statement”). Unless the Company Board of Directors shall have made an Adverse Recommendation Change, Company shall use its reasonable best efforts to prepare and file with the SECsolicit or cause to be solicited from its shareholders (including through a proxy solicitation firm), as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with applicable Law and the terms rules and regulations of the Notes NYSE, proxies to secure the Company Shareholder Approval and take all other reasonable actions necessary or advisable to secure the Company Shareholder Approval. Buyer shall take any action required to be taken under any applicable state or provincial securities Laws in connection with the issuance of the Warrants New Buyer Shares in the Transaction. Buyer and Company shall furnish all information concerning Buyer and Company, respectively, as may be reasonably requested in connection with the Proxy Statement (or any supplement required thereto) and any such action as aforesaid. Other than in the case of an Adverse Recommendation Change pursuant to Section 5.3, no filing of, or amendment or supplement to, the Proxy Statement will be made by either Party without providing the other Party a reasonable opportunity to review and comment thereon (which comments shall be considered in good faith). Each Party will advise the other Party promptly after it receives any oral or written request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information, and will promptly provide the other Party with copies of any written communication from the SEC or any state securities commission with respect thereto. Each of Company and Buyer shall ensure that the information provided by it for inclusion in the Proxy Statement (and any supplement required thereto) at the time of mailing thereof and at the time of the Scheme Meeting and the Company GM will not include an untrue statement of a material fact or omit to state a material fact required to be issued stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Company will ensure that the Proxy Statement (and any supplement required thereto) at the Second Closing as contemplated by this Agreement. Thereafter, time of mailing thereof and at the time of the Scheme Meeting and the Company shall as promptly as possible file GM will (with the SEC assistance and cooperation of Buyer as reasonably requested by Company) comply as to form in all material respects with the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review provisions of the preliminary proxy materials, for Securities Act and the sole purpose of voting upon Exchange Act and the approval rules and regulations promulgated thereunder and any applicable provisions of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgCompanies Law.

Proxy Statement. The Company shall prepare and file the Proxy Statement in preliminary form with the SEC as promptly as reasonably practicable after the date of this Agreement. The Company will provide to Parent a reasonable opportunity to review and comment upon the Proxy Statement, or any amendments or supplements thereto, prior to filing the same with the SEC. The Company agrees, as to itself and its Subsidiaries, that at the date of mailing to shareholders of the Company and at the time of the Stockholders’ Meeting (as defined in Section 6.4 below), (a) the Proxy Statement will comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder and (b) none of the information supplied by it or any of its Subsidiaries for inclusion or incorporation by reference in the Proxy Statement will 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 were made, not misleading. The Company shall as soon as reasonably practicable notify Parent of the receipt of all comments of the SEC with respect to the Proxy Statement and of any request by the SEC for any amendment or supplement thereto or for additional information and shall as soon as reasonably practicable provide to Parent copies of all material correspondence between the Company and/or any of its representatives on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement. The Company and Parent shall each use its reasonable best efforts to prepare promptly provide responses to the SEC with respect to all comments received on the Proxy Statement by the SEC and file with the SEC, as Company shall cause the definitive Proxy Statement to be mailed promptly as practicable after the date hereof but in the SEC staff advises that it has no event later than 30 days after further comments thereon or that the Initial ClosingCompany may commence mailing the Proxy Statement. Subject to applicable Laws, preliminary proxy materials the Company and Parent (with respect to a meeting of itself and Merger Sub) each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes and such other matters as may be reasonably necessary or advisable in accordance connection with the terms Proxy Statement or any other statement, filing, notice or application made by or on behalf of Parent, the Notes Company or any of their respective Subsidiaries to any third party and/or any Governmental Entity in connection with the Merger and the issuance of the Warrants to be issued at the Second Closing as transactions contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The As promptly as practicable following the date of this Agreement, the Company shall prepare and file with the SEC the preliminary proxy statement (such proxy statement, including any amendment or supplement thereto, the “Proxy Statement”), and in any event the Company shall use its reasonable best efforts to prepare and file the Proxy Statement with the SEC, as promptly as practicable SEC within 20 business days after the date hereof but in no event later than 30 days after of this Agreement. The Company agrees, as to itself and its Subsidiaries, that, at the Initial Closing, preliminary proxy materials with respect date of mailing to a meeting stockholders of the stockholders for Company and at the purpose of approving the issuance of shares of Preferred Stock upon conversion time of the Notes Stockholders Meeting, (i) the Proxy Statement will comply in accordance all material respects with the terms applicable provisions of the Notes Exchange Act and the issuance rules and regulations thereunder and (ii) none of the Warrants information supplied by it or any of its Subsidiaries for inclusion or incorporation by reference in the Proxy Statement will contain any untrue statement of a material fact or omit to state any material fact required to be issued at stated therein or necessary in order to make the Second Closing as statement therein, in light of the circumstances under which they were made, not misleading. Each of the Company and Parent shall furnish all information concerning itself and its Affiliates that is required to be included in the Proxy Statement or that is customarily included in proxy statements prepared in connection with transactions of the type contemplated by this Agreement. ThereafterEach of the Company and Parent shall use its reasonable efforts, after consultation with the other, to respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement and the Company shall use its reasonable efforts to cause the definitive Proxy Statement to be cleared by the SEC and mailed to the Company’s stockholders as promptly as possible file reasonably practicable following clearance from the SEC. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall promptly provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the Proxy Statement. If at any time prior to the Stockholders Meeting, any information relating to the Company or the Buyer Parties or any of their respective affiliates, officers or directors, 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 which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the definitive proxy statement and acting through its Board of Directorsextent required by applicable Law, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view disseminated to the stockholders of the Company. Notwithstanding anything to the contrary stated above, based solely on facts prior to filing or conditions arising after mailing the date hereof, that the issuances referred Proxy Statement (or any amendment or supplement thereto) or responding to in clause (i) above are not in the best interests any comments of the Company's stockholders. In SEC with respect thereto, the event that Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) aboveextent practicable, the Company will pay provide Parent with the opportunity to participate in any substantive calls between the Purchasers (based on their pro rata percentage Company, or any of its Representatives, and the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of SEC concerning the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgProxy Statement.

Proxy Statement. The Company In connection with the Mercer Shareholder Meeting, as soon as practicable after the date of this Agreement, Mercer shall use its reasonable best efforts prepare a proxy statement which complies as to prepare form in all material respects with the applicable provisions of the Exchange Act (the “Mercer Proxy Statement”) and file shall provide a copy of such Mercer Proxy Statement to Buyer for review and comment prior to filing such Mercer Proxy Statement with the SEC. As promptly as practical following Xxxxxx’x receipt of Buyer’s comments to the Mercer Proxy Statement, Mercer shall incorporate such comments as it deems appropriate, after consultation with its counsel, finalize the Mercer Proxy Statement and file such Mercer Proxy Statement with the SEC. Mercer shall use commercially reasonable efforts to have the Mercer Proxy Statement cleared by the SEC and mailed to its shareholders as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance its filing with the terms SEC. Mercer shall inform Buyer of any and all written and oral comments Mercer receives from the Notes SEC on the preliminary Mercer Proxy Statement and shall permit the issuance of the Warrants Buyer to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file review and comment on any revised versions prior to filing with the SEC and the definitive proxy statement and acting through final Mercer Proxy Statement prior to Mercer mailing the final Mercer Proxy Statement to its Board of Directorsshareholders. If, (i) call a Special Meeting at any time prior to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of Effective Time, any SEC review information relating to Mercer, any of the preliminary proxy materialsMercer Subsidiaries or any of their respective officers or directors should be discovered by Buyer or Mercer that should be set forth in an amendment or supplement to the Mercer Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, for the sole purpose of voting upon the approval in light of the issuance circumstances under which they were made, not misleading, then the party that discovers such information shall promptly notify the other party hereto and, to the extent required by Applicable Law, Xxxxxx shall promptly prepare an amendment or supplement describing such information and provide a copy of shares of Preferred Stock upon conversion of the Notes in accordance such amendment to Buyer for review and comment prior to filing such amendment with the terms SEC. As promptly as practicable following Xxxxxx’x receipt of the Notes and the issuance of the Warrants Buyer’s comments to be issued at the Second Closing such amendment, Mercer shall incorporate such comments as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; providedit deems appropriate, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors counsel, and legal counsel) that from a financial point of view file such amendment with the SEC and disseminate such amendment to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgshareholders.

Proxy Statement. The (a) As soon as reasonably practicable following the date of this Agreement, the Company shall use its reasonable best efforts to prepare and file shall cause to be filed with the SEC, SEC (and the Purchaser shall cooperate with the Company in the preparation and filing with the SEC of) a proxy statement in preliminary form relating to the special meeting of the Company’s shareholders (the “Company Shareholders Meeting”) to be held to consider the approval of the matters requiring the Requisite Shareholder Approvals and as promptly as practicable after following the date hereof but on which the Company receives confirmation from the SEC that it will not comment on, or that it has no additional comments on such proxy statement in no event later than 30 days after preliminary form, shall file the Initial Closing, preliminary proxy materials with respect to a meeting Proxy Statement. The Company shall include the recommendation of the stockholders for the purpose Board of approving the issuance of shares of Preferred Stock upon conversion Directors of the Notes Company in accordance with the terms favor of approval of the Notes Charter Amendment, the Investment Advisory Agreement and the issuance of the Warrants Purchased Stock to be issued at the Second Closing as contemplated by this Agreement. ThereafterPurchaser (the “Company Recommendation”), except that the Company shall as promptly as possible file with not be obligated to so include the SEC Company Recommendation if the definitive proxy statement and acting through its Board of Directors, (i) call Company has effected a Special Meeting to be held at the earliest practicable date but Change in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes Recommendation in accordance with the terms Section 5.7. None of the Notes information with respect to the Company or any of its Subsidiaries to be included in the Proxy Statement will, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Company Shareholders 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 were made, not misleading. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement rules and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgregulations promulgated thereunder.

Proxy Statement. As promptly as practicable, the Company shall prepare and file the Proxy Statement in preliminary form with the SEC; provided that the Company shall provide Parent and its counsel a reasonable opportunity to review the Company’s proposed preliminary Proxy Statement in advance of filing and consider in good faith any comments reasonably proposed by Parent and its counsel. Subject to Section 6.03, the Proxy Statement shall include the recommendation of the Board of Directors of the Company in favor of approval and adoption of this Agreement and the Merger. The Company shall use its reasonable best efforts to prepare cause the Proxy Statement to be mailed to its stockholders as promptly as practicable following after the clearance (which shall include upon expiration of the 10-day period after filing in the event the SEC does not review the Proxy Statement) of the Proxy Statement by the SEC (the “SEC Clearance Date”), and file in any event within three Business Days after the SEC Clearance Date. Parent and Merger Subsidiary shall furnish to the Company all information concerning Parent and Merger Subsidiary as may be reasonably required by the Company in connection with the SECProxy Statement. Each of the Company, Parent and Merger Subsidiary shall promptly correct any information provided by it for use in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Proxy Statement and to cause the Proxy Statement, as so amended or supplemented, to be filed with SEC and mailed to its stockholders, in each case as and to the extent required by Applicable Law. The Company shall (a) as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closingreceipt thereof, preliminary proxy materials provide Parent and its counsel with copies of any written comments, and advise Parent and its counsel of any oral comments, with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with Proxy Statement (or any amendment or supplement thereto) received from the SEC the definitive proxy statement and acting through or its Board of Directorsstaff, (ib) call provide Parent and its counsel a Special Meeting reasonable opportunity to be held at review the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials Company’s proposed response to such comments and (yc) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines consider in good faith (after consultation with any comments reasonably proposed by Parent and its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. (a) As promptly as practicable after the date of this Agreement, the Company shall prepare a proxy statement (together with any amendments thereof or supplements thereto, the “Proxy Statement”) and, after consultation with, and approval by, Merger Sub (which shall not be unreasonably withheld or delayed), file the preliminary Proxy Statement with the SEC. The Company shall use its reasonable best efforts to prepare (i) obtain and file furnish the information required to be included by the SEC in the Proxy Statement, respond, after consultation with Parent or Merger Sub, promptly to any comments made by the SEC, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials SEC with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock Proxy Statement; and (ii) promptly upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials Proxy Statement and (y) the conclusion of any SEC review of the preliminary proxy materialsProxy Statement, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants cause a definitive Proxy Statement to be issued at mailed to the Second Closing as contemplated by this Agreement and (ii) include Company’s stockholders and, if necessary, after the definitive Proxy Statement shall have been so mailed, promptly circulate amended or supplemental proxy materials and, if required in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveconnection therewith, resolicit proxies; provided, however, that no such amended or supplemental proxy materials will be filed with the Board of Directors may withdraw SEC or adversely modify their recommendation mailed by the Company without consultation and review by Parent or Merger Sub. The Company will promptly notify Parent and Merger Sub of the issuances referred to in clause (i) above if receipt of comments from the Board SEC and of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that any request from a financial point of view the SEC for amendments or supplements to the stockholders preliminary Proxy Statement or definitive Proxy Statement or for additional information, and will promptly supply Parent and Merger Sub with copies of all written correspondence between the Company or its representatives, on the one hand, and the SEC or members of its staff, on the other hand, with respect to the preliminary Proxy Statement, the definitive Proxy Statement, the Merger or any of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement. Parent, Merger Sub and Merger Partnership will cooperate with the Company in connection with the preparation of the Proxy Statement, including furnishing to the holders of Common Stock for Company any and all information regarding Parent, Merger Sub and Merger Partnership and their approval without respective Affiliates as may be required to be disclosed therein. The Proxy Statement shall contain the prior written consent of WarburgCompany Recommendation (as defined below), except to the extent that the Company Board shall have effected a Change in Recommendation, as permitted by and determined in accordance with Section 6.4(c).

Proxy Statement. The (a) As promptly as reasonably practicable, and with the goal of filing no later than twenty-five (25) Business Days, following the date of this Agreement, the Company shall prepare, in consultation with Parent, and file with the SEC the preliminary Proxy Statement. Subject to Section 5.2(d), the Company and the Company Board of Directors shall include the Company Board Recommendation in the proxy statement to be filed with the SEC in connection with seeking Company Stockholder Approval (including the letter to stockholders, notice of meeting and form of proxy, as amended or supplemented, the “Proxy Statement”). Each of the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall furnish all information concerning itself and its affiliates (including Guarantor, in the case of Parent and Merger Sub) that is required to be included in the Proxy Statement or that is customarily included in proxy statements prepared in connection with transactions of the type contemplated by this Agreement, or that the other party may reasonably request in connection with the preparation and filing of the Proxy Statement. The Parties shall use its their respective reasonable best efforts to prepare respond as promptly as reasonably practicable to any comments of the SEC with respect to the Proxy Statement. The Company, on the one hand, and file Parent, on the other hand, shall promptly notify the other upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement or additional information in connection therewith. The Company shall give Parent and its counsel a reasonable opportunity to review and comment on the Proxy Statement, including all amendments and supplements thereto, prior to filing such documents with the SECSEC or disseminating them to Company Stockholders and a reasonable opportunity to review and comment on all responses to requests for additional information, and shall consider any reasonable comments proposed by Parent in good faith. The Company will cause the definitive Proxy Statement to be mailed to the Company Stockholders as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing expiration of the preliminary proxy materials and ten (10)-day waiting period provided in Rule 14a-6(a) promulgated under the Exchange Act or (y) the conclusion of date on which the Company learns the SEC staff has no further comments on the Proxy Statement. If, at any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view time prior to the stockholders of Company Stockholders’ Meeting, any information relating to the Company, based solely on facts Parent or conditions arising after any of their respective affiliates, officers or directors should be discovered by the date hereofCompany or Parent or Guarantor that should be set forth in an amendment or supplement to the Proxy Statement, or any other required public filing in connection with the Merger or the Company Stockholders’ Meeting, as the case may be, so that the issuances referred Proxy Statement would not contain any untrue statement or misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in clause (i) above are not order to make the statements made therein, in the best interests light of the Company's stockholders. In the event that the Board of Directors withdraws circumstances under which they are or adversely modifies its recommendation of the issuances referred to in clause (i) abovewere made, not misleading, the Company will pay Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing (or correcting) such information shall be prepared and, following a reasonable opportunity for the other Party (and its counsel) to review and comment on such amendment or supplement, promptly filed with the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this AgreementSEC and, to the holders of Common Stock for their approval without extent required by applicable Law or the prior written consent of WarburgSEC or its staff, disseminated to the Company Stockholders.

Proxy Statement. If the Closing occurs, the Company shall call and hold a special meeting of its stockholders, as promptly as reasonably practicable after the Closing, but no later than six months following the Closing Date (the “Meeting End Date”) to vote on proposals (collectively, the “Stockholder Proposal”) to approve the issuance of shares of Common Stock in connection with the conversion of the Debentures into shares of Common Stock pursuant to Section 4 of the Debentures and the right of each Purchaser to purchase shares of Common Stock pursuant to Section 4.3 hereof (“Stockholder Approval,” and the date on which such approval is obtained, the “Stockholder Approval Date”). The board of directors shall recommend to the Company’s stockholders that such stockholders approve the Stockholder Proposal, and shall not modify or withdraw such resolution. In connection with such meeting, the Company shall promptly prepare (and the Purchasers will reasonably cooperate with the Company to prepare) and file (but in no event more than 90 days following the Closing) with the SEC a preliminary proxy statement, shall use its reasonable best efforts to prepare solicit proxies for such stockholder approval and file with shall use its reasonable best efforts to respond to any comments of the SEC, SEC or its staff and to cause a definitive proxy statement related to such stockholders’ meeting to be mailed to the Company’s stockholders as promptly as practicable after clearance by the date hereof but in no SEC. If at any time prior to such stockholders’ meeting there shall occur any event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants that is required to be issued at set forth in an amendment or supplement to the Second Closing as contemplated by this Agreement. Thereafterproxy statement, the Company shall as promptly as possible file practicable prepare and mail to its stockholders such an amendment or supplement. The Company agrees that each proxy statement referred to in this Section 4.6 shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder and that none of the information included or incorporated by reference in any such proxy statement will, at the date it is filed with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view mailed to the stockholders of the CompanyCompany or at the time of the stockholders’ meeting, or at the time of any amendment or supplement thereof, 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, except for statements made in such proxy statement based solely exclusively on facts information supplied in writing by or conditions arising after on behalf of the date hereof, that Purchasers specifically and explicitly for inclusion or incorporation by reference therein. Each of the issuances referred Purchasers and the Company agrees promptly to in clause (i) above are not correct any information provided by it or on its behalf for use in the best interests proxy statement if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall as promptly as practicable prepare and mail to its stockholders an amendment or supplement to correct such information to the extent required by applicable laws and regulations. The Company shall consult with the Purchasers prior to mailing any proxy statement, or any amendment or supplement thereto, and provide the Purchasers with a reasonable opportunity to comment thereon. The Company shall promptly notify the Purchasers upon the receipt of any comments from the Company's stockholdersSEC or its staff or any request from the SEC or its staff for amendments or supplements to any proxy statement and shall provide the Purchasers with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. The directors’ recommendation described in this Section 4.6 shall be included in the proxy statement filed in connection with obtaining such stockholder approval. In the event that the Board of Directors withdraws or adversely modifies its recommendation approval of the issuances referred to in clause (i) aboveStockholder Proposal is not obtained at such special stockholders’ meeting, the Company will pay shall include a proposal to approve (and, the Purchasers board of directors shall recommend approval of) such Stockholder Proposal at a meeting of its stockholders (based which may be an annual meeting) no less than once in each six-month period beginning on their pro rata percentage the Meeting End Date until such approval is obtained or made, and the other applicable provisions of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal this Section 4.6 shall apply with respect to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of seeking such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgStockholder Proposal.

Proxy Statement. The Company As promptly as practicable following the date of this Agreement, Novadigm shall use its reasonable best efforts prepare and, no later than the tenth business day immediately following the later of the date of the public announcement of this Agreement and the date upon which Parent provides to prepare and Novadigm all information required to be provided by Parent for inclusion in the Proxy Statement, file with the SECSEC the preliminary Proxy Statement. Notwithstanding anything contained in this Agreement to the contrary, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closingabsent any temporary restraining order, preliminary proxy materials with respect to or permanent injunction or other order or decree issued by any court of competent jurisdiction or other legal restraint or prohibition (each, a meeting "LEGAL RESTRAINT") or notification by the SEC of the stockholders for the purpose commencement of approving the issuance of shares of Preferred Stock upon conversion an SEC review of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafterpreliminary Proxy Statement, the Company Novadigm shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, Proxy Statement on the 10th calendar day (ior as soon thereafter as practicable) call a Special Meeting to be held at immediately following the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review filing of the preliminary proxy materials, for Proxy Statement with the sole purpose of voting upon SEC and shall cause the approval mailing of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view definitive Proxy Statement to the stockholders of Novadigm to occur on that day or as promptly as reasonably practicable thereafter. Each of Novadigm and Parent shall use its commercially reasonable efforts to respond as promptly as practicable to any comments of the CompanySEC with respect to the Proxy Statement. Each of Novadigm and Parent shall furnish all information concerning such person to the other as may be reasonably requested in connection with the preparation, based solely filing and distribution of the Proxy Statement. Novadigm shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between it and its representatives, on facts the one hand, and the SEC and its staff, on the other hand. Notwithstanding the foregoing, prior to filing or conditions arising after mailing the date hereofProxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, that the issuances referred to in clause Novadigm (i) above are shall provide Parent an opportunity to review and comment on such document or response, (ii) shall consider in good faith for inclusion in such document or response all comments reasonably proposed by Parent and (iii) shall not file or mail such document or respond to the SEC prior to receiving the approval of Parent, which approval shall not be unreasonably withheld or delayed and shall not be required after a Change of Recommendation (as defined below). If at any time prior to the Effective Time, any information relating to Novadigm, Parent or any of their respective affiliates, officers or directors, should be discovered by Novadigm or Parent which should be set forth in an amendment or supplement to the best interests 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 Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) abovecircumstances under which they are made, not misleading, the Company will pay to party which discovers such information shall promptly notify the Purchasers (based on their pro rata percentage of other parties hereto and an appropriate amendment or supplement describing such information shall be filed with the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this AgreementSEC and, to the holders extent required by law, disseminated to the stockholders of Common Stock for their approval without the prior written consent of WarburgNovadigm.

Proxy Statement. The Company As soon as reasonably practicable following the Effective Date, Seller shall file a proxy statement for the Shareholders Meeting (the "Proxy Statement") with the SEC under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and shall use its all commercially reasonable best efforts to prepare and file with have the SEC, Proxy Statement cleared by the SEC as soon as possible. Seller shall cause the Proxy Statement to be mailed to its stockholders as promptly as practicable after SEC clearance. Purchasers and the date hereof but Seller shall cooperate with each other in no event later than 30 days after the Initial Closingpreparation of the Proxy Statement, preliminary proxy materials and Seller shall notify Purchasers of the receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information. Seller shall promptly provide to Purchasers copies of all correspondence between the Seller or any representative of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes Seller and the issuance of SEC with respect to the Warrants Proxy Statement. The Seller shall provide Purchasers and their counsel the opportunity to be issued at review the Second Closing as contemplated by this Agreement. ThereafterProxy Statement, the Company shall as promptly as possible file including all amendments and supplements thereto, prior to its being filed with the SEC and shall give Purchasers and their counsel the definitive proxy statement opportunity to review all responses to requests for additional information and acting through its Board replies to comments prior to their being filed with, or sent to, the SEC. Each of Directorsthe Seller, (i) call a Special Meeting on one hand, and the Purchasers, on the other, agrees to use all commercially reasonable efforts, after consultation with the other parties hereto, to respond promptly to all such comments of and requests by the SEC. Sellers shall cause the Proxy Statement and all required amendments and supplements thereto to be held mailed by Seller to the holders of shares entitled to vote at the Shareholders Meeting at the earliest practicable date but time. Each of Purchasers, on one hand, and Seller, on the other, shall furnish all information concerning itself or themselves to the other as may be reasonably requested in no event later than 45 days after connection with any such action and the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials preparation, filing and (y) the conclusion of any SEC review distribution of the preliminary proxy materials, Proxy Statement. Seller and Purchasers agree to correct any information provided by them for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include use in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw Proxy Statement which shall have become false or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgmisleading.

Proxy Statement. The (a) As promptly as practicable after the date of this Agreement, and in any event no later than ten Business Days after the Company shall have delivered the Company Public Company Financials to Parent, Parent shall prepare and cause to be filed with the SEC the Proxy Statement. Parent shall use its commercially reasonable best efforts to prepare and file cause the Proxy Statement to comply with the SEC, applicable rules and regulations promulgated by the SEC and to respond promptly to any comments of the SEC or its staff. Parent shall use commercially reasonable efforts to cause the Proxy Statement to be mailed to Parent’s stockholders as promptly as practicable after the date hereof but in no event later than 30 days after Proxy Statement has been filed with the Initial Closing, preliminary proxy materials with respect SEC and either (i) the SEC has indicated that it does not intend to a meeting review the Proxy Statement or that its review of the stockholders for Proxy Statement has been completed or (ii) at least ten calendar days shall have passed since the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance Proxy Statement was filed with the terms of SEC without receiving any correspondence from the Notes SEC commenting upon, or indicating that it intends to review, the Proxy Statement. Each Party shall promptly furnish to the other Party all information concerning such Party, its Subsidiaries and the issuance of the Warrants to its stockholders that may be issued at the Second Closing as required or reasonably requested in connection with any action contemplated by this AgreementSection 5.1. ThereafterIf any event relating to the Company occurs, or if the Company becomes aware of any information, that should be disclosed in an amendment or supplement to the Proxy Statement, then the Company shall as promptly as possible file inform Parent thereof and shall cooperate fully with Parent in filing such amendment or supplement with the SEC the definitive proxy statement and acting through its Board of Directorsand, (i) call a Special Meeting to be held at the earliest practicable date but if appropriate, in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve mailing such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw amendment or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view supplement to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred Parent. Parent shall pay all filing fees required to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay be paid to the Purchasers (based on their pro rata percentage SEC in connection with the Proxy Statement and all of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunderits own legal, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matteraccounting, proxy solicitation, printing and mailing costs and other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgamounts related thereto.

Proxy Statement. As soon as practicable after the Acceptance Date, unless the Merger is consummated in accordance with Section 253 of the DGCL, the Company shall prepare the Proxy Statement, file it with the SEC under the Exchange Act, and use all reasonable best efforts to have the Proxy Statement cleared by the SEC. Parent and Merger Subsidiary shall promptly furnish to the Company all information concerning Parent and Merger Subsidiary that may be required or reasonably requested in connection with any action contemplated by this Section 6.9. Parent, Merger Subsidiary and the Company shall cooperate with each other in the preparation of the Proxy Statement, and the Company shall notify Parent of the receipt of any comments of the SEC with respect to the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of all correspondence between the Company or any Representative of the Company and the SEC. The Company shall give Parent and its counsel a reasonable opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give Parent and its counsel a reasonable opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC. Each of the Company, Parent and Merger Subsidiary agrees to use its reasonable best efforts to prepare and file efforts, after consultation with the other parties hereto to respond promptly to all such comments of and requests by the SEC, as . As promptly as practicable after the date hereof but in no event later than 30 days after Proxy Statement has been cleared by the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterSEC, the Company shall as promptly as possible file with mail the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view Proxy Statement to the stockholders of the Company, based solely on facts or conditions arising after . The Proxy Statement shall include the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that recommendation by the Board of Directors withdraws of the Company that the Company’s stockholders vote to approve the Merger and this Agreement unless the Board of Directors of the Company has withdrawn or adversely modifies modified its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgaccordance with Section 6.3.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as As promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible prepare the preliminary Proxy Statement and, after consultation with and review by Merger Sub, file the preliminary Proxy Statement with the SEC the definitive proxy statement and acting through its Board of Directors, SEC. The Company shall make all reasonable efforts to (i) call a Special Meeting obtain and furnish the information required to be held at included by the earliest practicable date but SEC in no event later than 45 days the Proxy Statement and, after consultation with and review by Merger Sub, to respond promptly to any comments made by the SEC with respect to the Proxy Statement; and (ii) promptly upon the earlier of (xA) receiving notification that the SEC is not reviewing the preliminary proxy materials and Proxy Statement or (yB) the conclusion of any SEC review of the preliminary proxy materialsProxy Statement, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants cause a definitive Proxy Statement to be issued at mailed to the Second Closing as contemplated by this Agreement and (ii) include Company’s stockholders and, if necessary, after the definitive Proxy Statement has been so mailed, promptly circulate amended or supplemental proxy materials and, if required in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveconnection therewith, resolicit proxies; provided, however, that no such amended or supplemental proxy materials will be mailed by the Company without consultation and review by Parent or Merger Sub. The Company will promptly notify Parent and Merger Sub of the receipt of comments of the SEC and of any request from the SEC for amendments or supplements to the preliminary Proxy Statement or definitive Proxy Statement or for additional information, and will promptly supply Parent and Merger Sub with copies of all written correspondence between the Company or Company Representatives, on the one hand, and the SEC or members of its staff, on the other hand, with respect to the preliminary Proxy Statement, the definitive Proxy Statement, the Merger or any of the other Transactions. Parent and Merger Sub will cooperate with the Company in connection with the preparation of the Proxy Statement, including furnishing to the Company any and all information regarding Parent and Merger Sub and their respective affiliates as may be required to be disclosed therein. The Proxy Statement shall contain the recommendation of the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company’s stockholders approve this Agreement and the Transactions, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event provided that the Board of Directors withdraws or adversely modifies Board Committee may withdraw, modify or change its recommendation of this Agreement and the issuances referred to Transactions if it does so in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgaccordance with Section 6.02(b).

Proxy Statement. The Company (a) Liberty Parent shall use its reasonable best efforts to as promptly as reasonably practicable after the date of this Agreement, and in any event the preliminary version thereof within 20 Business Days from the date of this Agreement, prepare and file with the SEC, to the extent such filings are required by Applicable Law in connection with the transactions contemplated hereby, a Proxy Statement of Liberty Parent relating to the meeting of the stockholders of Liberty Parent to be held for the purposes of obtaining the Liberty Parent Stockholder Approval (including any postponement, adjournment or recess thereof, the “Liberty Parent Stockholders Meeting”) therein, and any amendments or supplements thereto necessary to complete the review of the Proxy Statement by the SEC (the “Proxy Statement”). Liberty Parent shall disseminate the Proxy Statement to the stockholders of Liberty Parent following completion of the review of the Proxy Statement by the SEC. The Parties shall cooperate in preparing and filing with the SEC the Proxy Statement (or such other filings as may be necessary under Applicable Law). Schlumberger US and Schlumberger Canada, as applicable, shall furnish all information concerning Schlumberger US, Schlumberger Canada, the Schlumberger US Targets, Schlumberger Canada Target or the Business, as may be reasonably requested by Liberty Parent or required by Applicable Law in connection with the preparation and filing of the Proxy Statement and any necessary amendments or supplements thereto (or such other filings as may be necessary under Applicable Law). Liberty Parent shall, as promptly as practicable after the date hereof but in no event later than 30 days after receipt thereof, provide the Initial Closing, preliminary proxy materials Schlumberger Parties with copies of any written comments and advise the Schlumberger Parties of any oral comments with respect to a meeting the Proxy Statement received by Liberty Parent from the SEC, including any request from the SEC for amendments or supplements thereto (or such other filings as may be necessary under Applicable Laws), and shall promptly provide the Schlumberger Parties with copies of all other material or substantive correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Notwithstanding the foregoing, prior to filing the Proxy Statement or responding to any comments of the stockholders for SEC with respect thereto, Liberty Parent shall promptly provide the purpose Schlumberger Parties and their counsel a reasonable opportunity to review such document or response (including the proposed final version of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes such document or response) and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines consider in good faith (after consultation the comments of Schlumberger US in connection with its financial advisors and legal counsel) that from a financial point of view to the stockholders any such document or response. None of the CompanySchlumberger Parties, based solely on facts Liberty Parent or conditions arising after their respective Representatives shall agree to participate in any material or substantive meeting or conference (including by telephone) with the date hereofSEC, that the issuances referred to in clause (i) above are not in the best interests or any member of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation staff thereof, in respect of the issuances referred to Proxy Statement unless it consults with the other Party in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreementadvance and, to the holders of Common Stock for their approval without extent permitted by the prior written consent of WarburgSEC, allows the other Party to participate.

Proxy Statement. The Company (a) As promptly as practicable after the execution of this Agreement, Parent shall prepare and file with the SEC (with appropriate requests for confidential treatment) under the Exchange Act a proxy statement and a form of proxy (such proxy statement, together with any amendments thereof or supplements thereto, in the form delivered to the stockholders of Parent, the "Proxy Statement") relating to Parent Stockholders Meeting and the vote of the stockholders of Parent with respect to this Agreement and the transactions contemplated hereby. Parent will cause the Proxy Statement to comply as to form in all material respects with the Exchange Act and the rules and regulations thereunder. Parent shall use its all reasonable best efforts to cause the Proxy Statement to be cleared with the SEC as promptly as reasonably practicable thereafter, and shall take any and all actions required under any applicable federal or state securities or Blue Sky Laws in connection with the issuance of the Purchase Price Shares. Parent shall provide Seller an opportunity to review and comment upon the Proxy Statement prior to any filing with the SEC. Seller shall use all reasonable efforts to cooperate with Parent in connection with the preparation and clearance of the Proxy Statement. Without limiting the generality of the foregoing, Parent and Seller shall each notify the other as promptly as practicable upon becoming aware of any event or circumstance which should be described in an amendment of, or a supplement to, the Proxy Statement. To the extent required to comply with the federal securities laws, upon notification by Seller to Parent pursuant to the preceding sentence and prior to the Parent Stockholders Meeting, Parent shall use all reasonable efforts to prepare and file with the SEC, as promptly as practicable after SEC an amendment or supplement to the date hereof but in no Proxy Statement reflecting such event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreementor circumstance. Thereafter, the Company (b) The Proxy Statement shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to Parent in clause (i) above if the Board favor of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg. Section 5.13.

Proxy Statement. The As promptly as reasonably practicable following the date of this Agreement, the Company shall use its reasonable best efforts to prepare and file with the SEC, as promptly as practicable after SEC the date hereof but in no event later than 30 days after preliminary Proxy Statement; provided that Parent shall have a reasonable opportunity to review and comment on the Initial Closing, preliminary proxy materials with respect to a meeting Proxy Statement (and any amendments thereto) before it is filed. Each of the stockholders for Company and Parent shall furnish all information concerning itself and its affiliates that is required to be included in the purpose of approving the issuance of shares of Preferred Stock upon conversion Proxy Statement or that is customarily included in proxy statements prepared in connection with transactions of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as type contemplated by this Agreement. ThereafterEach of the Company and Parent shall use its commercially reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement, and the Company shall use its commercially reasonable efforts to cause the definitive Proxy Statement to be mailed to the Company’s stockholders as promptly as possible file reasonably practicable after the date of this Agreement. The Company and Parent shall promptly notify each other upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide each other with copies of all correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company, Parent or any of their respective affiliates, officers or directors should be discovered by the Company or Parent that 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 which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the definitive proxy statement and acting through its Board of Directorsextent required by applicable Law, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view disseminated to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The Company As soon as practicable after the Closing, Intek shall use its reasonable best efforts to prepare and file with the SECSecurities and Exchange Commission a proxy statement and related solicitation materials relating to a special meeting of the holders of the Intek's common stock, $.01 par value (the "Intek Stockholders' Meeting") concerning the Securicor Agreement and the transactions contemplated thereby (such proxy statement, as amended or supplemented from time to time, being herein referred to as the "Proxy Statement"), and shall use its best efforts to cause the Proxy Statement to be mailed to its stockholders at such time and in such manner as permits the Intek Stockholders' Meeting to be held as promptly as practicable after the date hereof but practicable. MIC and Xxxxxxxx shall each use its best efforts to furnish all information as may be reasonably requested by Intek and, in no event later than 30 days after the Initial Closingany case, preliminary proxy materials as required with respect to a meeting Intek by Regulation 14A under the Exchange Act for inclusion in the Proxy Statement. The information provided by Intek and MIC, respectively, for use in the Proxy Statement shall, on the date when the Proxy Statement is first mailed to Intek's stockholders, and on the date of the stockholders Intek Stockholders' Meeting, be true and correct in all material respects and shall not omit to state any material fact required to be stated therein or necessary in order to make the statements contained therein not misleading, and Intek, MIC and Xxxxxxxx each agree promptly to correct any information provided by it for use in the Proxy Statement which shall have become false or misleading. Intek shall duly call, give notice of, convene and hold the Intek Stockholders' Meeting, for the purpose of approving approving, among other matters, the issuance of shares of Preferred Stock upon conversion of transactions contemplated under the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Securicor Agreement. ThereafterIntek, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.recommend to

Proxy Statement. The Company (a) As soon as reasonably practicable following the date off this Agreement, Seller shall use its reasonable best efforts to prepare and file with the SEC, SEC the Proxy Statement. Seller shall use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the stockholders of Seller as promptly as reasonably practicable after the date hereof but hereof. No filing of, or amendment or supplement to, the Proxy Statement will be made by Seller without providing Buyer a reasonable opportunity to review and comment thereon. If at any time prior to the Seller Stockholders’ Meeting any information relating to Seller or Buyer, or any of their respective Affiliates, directors or officers, should be discovered by Seller or Buyer which should be set forth in no event later than 30 days after an amendment or supplement to the Initial ClosingProxy Statement, preliminary proxy materials so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other Party hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the stockholders of Seller. Seller shall notify Buyer 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 Buyer with copies of all correspondence between it 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 a meeting of the stockholders for Proxy Statement or the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as transactions contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, with the assistance of and subject to prior consultation with Parent, as promptly as reasonably practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, a preliminary Proxy Statement (the “Preliminary Proxy Statement”) relating to the Merger as required by the Exchange Act and the rules and regulations thereunder. Each of Parent and Merger Sub shall furnish to the Company the information relating to it required by the Exchange Act and the rules and regulations thereunder to be included in the Preliminary Proxy Statement. 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 prior consultation with Parent, respond promptly 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 Stockholders at the earliest reasonably practicable date and shall use its reasonable best efforts (subject to Section 5.02) to obtain the Requisite Stockholder Approval. The Company shall ensure that neither the Preliminary Proxy Statement nor the definitive Proxy Statement 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. Parent shall ensure that none of the information it supplies for inclusion in the Preliminary Proxy Statement or the definitive Proxy Statement contains any untrue statement of a material fact or omits 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. 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 definitive Proxy Statement, so that the issuances referred definitive 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 clause (i) above are not order to make the statements therein, in the best interests light of the Company's stockholderscircumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and the Company shall cause an appropriate amendment or supplement describing such information to be filed with the SEC, and to the extent required by applicable Law, disseminated to the Company Stockholders. In The Company shall cause the event that definitive Proxy Statement to comply as to form in all material respects with the Board provisions of Directors withdraws or adversely modifies its the Exchange Act and the rules and regulations of the SEC promulgated thereunder. Except as Section 5.02 expressly permits, the definitive Proxy Statement shall include the recommendation of the issuances referred to in clause (i) above, Company Board that the Company will pay to Stockholders adopt the Purchasers (based on their pro rata percentage agreement of the aggregate Purchase Price) merger set forth in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The (i) As promptly as practicable after the execution of this Agreement, Acquiror and the Company shall jointly prepare and Acquiror shall file with the SEC, a proxy statement to be filed with the SEC and sent to the stockholders of Acquiror relating to the Special Meeting (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”). Each of Acquiror and the Company shall use its reasonable best efforts to prepare and file cause the Proxy Statement to comply with the rules and regulations promulgated by the SEC, . Acquiror shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC under the Exchange Act as promptly as practicable after practicable. Each of Acquiror and the date hereof but Company agrees to furnish to the other party all information concerning itself, its Subsidiaries, officers, directors, managers, stockholders, and other equityholders and information regarding such other matters as may be reasonably necessary or advisable or as may be reasonably requested in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance connection with the terms Proxy Statement, a Current Report on Form 8-K pursuant to the Exchange Act in connection with the Transactions, or any other statement, filing, notice or application made by or on behalf of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterAcquiror, the Company shall as promptly as possible file or the Company’s Subsidiaries to any regulatory authority (including Nasdaq) in connection with the SEC Transactions (the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting “Other Documents”). Acquiror will cause the Proxy Statement to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view mailed to the stockholders of Acquiror in each case promptly after it is cleared by the Company, based solely on facts or conditions arising after SEC. To the date hereof, that the issuances referred to in clause (i) above are extent not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) aboveprohibited by Law, the Company will pay and Acquiror shall provide the C Preferred Parent Investor and its counsel a reasonable opportunity to review and comment on the Purchasers Proxy Statement and any Other Document before any such document or any pre-effective amendment thereto is submitted or filed with the SEC (based on their pro rata percentage of the aggregate Purchase Pricebut in any event no less than three (3) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither Business Days prior to nor at such submission or filing), and Acquiror shall give reasonable and good faith consideration to any comments made by the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgC Preferred Parent Investor and its counsel.

Proxy Statement. The (a) If required by applicable law, within 15 business days following the execution of this Agreement, with all reasonable and necessary assistance from Parent and Purchaser, the Company shall file the Proxy Statement with the SEC under the Exchange Act, and shall use its reasonable best efforts to prepare have the Proxy Statement cleared by the SEC. The Proxy Statement shall comply with all provisions of the Exchange Act, including, without limitation, Rule 14a-9 thereunder. Parent, Purchaser and file the Company shall cooperate with each other in the preparation of the Proxy Statement, and the Company shall notify Parent of the receipt of any comments of the SEC with respect to the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of all correspondence between the Company or any representative of the Company and the SEC. The Company shall give Parent and its counsel the opportunity to review the Proxy Statement prior to its being filed with the SEC, and shall give Parent and its counsel the opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC. Each of the Company, Parent and Purchaser agrees to use its reasonable best efforts, after consultation with the other parties hereto, to respond promptly to all such comments of and requests by the SEC and to cause the Proxy Statement and all required amendments and supplements thereto to be mailed to the holders of Shares entitled to vote at the Stockholders' Meeting at the earliest practicable time. (b) If any event shall occur as promptly as practicable after a result of which it is necessary, in the date hereof but opinion of legal counsel to Parent or the Company, to amend the Proxy Statement in no event later than 30 days after order to make the Initial Closing, preliminary proxy materials with respect Proxy Statement not misleading in light of the circumstances existing at the time it is delivered to a meeting holder of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterCommon Stock, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.forthwith 16

Proxy Statement. The (a) As soon as reasonably practicable following the date of this Agreement, the Company shall use its reasonable best efforts to prepare and file with the SECSEC a proxy statement (as amended or supplemented from time to time, as promptly as practicable after the date hereof but in no event later than 30 days after “Proxy Statement”) to be sent to the Initial Closing, preliminary proxy materials with respect holders of Common Shares relating to a the meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with Company (the terms “Company Stockholders’ Meeting”) to be held to consider adoption of this Agreement, approval of the Notes Merger and approval of any other matters to effect the transactions contemplated hereby as determined by the parties. The Company in its sole discretion may determine to include in the Proxy Statement matters for which the Company would otherwise seek approval at the Company’s annual meeting, which such matters shall be determined by the Company in its sole discretion; provided that any such matters shall not be presented in a manner adverse in any material respect to Holdco, the Company Board Recommendation or the approval, adoption, recommendation or declaration of advisability by the Company Board or any committee thereof with respect to this Agreement or the Merger and the issuance of the Warrants to be issued at the Second Closing as other transactions contemplated by this Agreement. Thereafter, Holdco shall cooperate with the Company in connection with the preparation of the Proxy Statement and shall furnish all information concerning Holdco, Merger Sub and their respective Affiliates as the Company may reasonably request in connection with the preparation of the Proxy Statement. The Company shall use reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as possible file with reasonably practicable after such filing. The Company will use reasonable best efforts to cause the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting Proxy Statement to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view mailed to the stockholders of the Company, based solely on facts or conditions arising Company as promptly as reasonably practicable after the date hereof, that Proxy Statement is cleared by the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgSEC.

Proxy Statement. The (a) As promptly as practicable after the execution of this Agreement, the Company and Centex shall use its reasonable best efforts to cooperate (with the cooperation of the Acquirer as needed) and promptly prepare and file with the Securities and Exchange Commission ("SEC") a joint proxy statement relating to the meetings of the Company's and Centex's stockholders to be jointly held where (a) the Centex Stockholders will be asked to (1) approve an amendment to the Restated Articles of Incorporation of Centex to increase the authorized shares of Centex Common Stock, and (2) approve the termination of the Nominee Agreement in order to facilitate the Transaction, and (b) the Company Stockholders will be asked to approve the Transaction, including the Merger and this Agreement (collectively, together with any amendments thereof or supplements thereto, the "PROXY STATEMENT"), with respect to the Merger and any other filings made by or required to be made by the Company or Centex with the SEC other than the Proxy Statement (the "OTHER FILINGS"), if any. The respective parties shall cause the Proxy Statement and any Other Filings to comply as to form in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "EXCHANGE ACT"), including Regulation 14A, and any other applicable laws. The respective parties, after consultation with the other, will use all reasonable efforts to respond to any comments made by the SEC with respect to the Proxy Statement and any Other Filings. Each of Centex, Acquirer and the Company shall furnish to each other all information concerning it and the holders of its capital stock as the other may reasonably request in connection with such actions and the preparation of the Proxy Statement and any Other Filings. As promptly as practicable after the date hereof but in no event later than 30 clearance of the Proxy Statement by the SEC, the Company and Centex shall mail the Proxy Statement to their stockholders (or, if the SEC chooses not to review the Proxy Statement, within 20 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is notifies the Company and Centex that it will not reviewing review the preliminary proxy materials Proxy Statement, unless otherwise agreed by the Company and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) Centex). The Proxy Statement shall include in the proxy statement the recommendation of its the Company Board of Directors that holders adoption of the Common Stock approve such issuances referred to in clause (i) above; provided, however, Merger Agreement by the Company's stockholders is advisable and that the Company Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, has determined that the issuances referred to in clause (i) above are not Merger is fair to, and in the best interests of of, the Company's stockholders. In , subject to the event that Company Board's right to withdraw, modify or amend such recommendation if the Company Board of Directors withdraws or adversely modifies its recommendation Special Committee determines in good faith, after receipt of the issuances referred to in clause (i) above, advice of its outside counsel and the Company will pay Financial Advisor, that such action is necessary for the Company Board to comply with its fiduciary duties under applicable law. No amendment or supplement to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal Proxy Statement or modification. Neither prior to nor at the Special Meeting shall any Other Filings will be made by the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent approval of WarburgCentex, which approval shall not be unreasonably withheld, delayed or conditioned. The Company will advise Centex or Acquirer, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or any Other Filings or comments thereon and responses thereto or requests by the SEC for additional information.

Proxy Statement. The (a) As promptly as practicable after the execution of this Agreement, subject to the terms of this Section 7.01, Novus (with the assistance and cooperation of the Company as reasonably requested by Novus) shall use its reasonable best efforts to prepare and file with the SECSEC a proxy statement (as amended or supplemented, as promptly as practicable after the date hereof but in no event later than 30 days after “Proxy Statement”) to be sent to the Initial Closing, preliminary proxy materials with respect stockholders of Novus relating to a the meeting of Novus’s stockholders (including any adjournment or postponement thereof, the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants “Novus Stockholders’ Meeting”) to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, held to consider (i) call a Special Meeting to be held at approval and adoption of this Agreement and the earliest practicable date but in no event later than 45 days after the earlier of Merger, (xii) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Novus Class A Common Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and the Subscription Agreements, (ii) include the second amended and restated Novus Certificate of Incorporation as set forth on Exhibit E and (iii) any other proposals the parties deem necessary to effectuate the Merger (collectively, the “Novus Proposals”). Novus shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) in which the proxy statement Proxy Statement shall be included as a prospectus, in connection with the recommendation of its Board of Directors that holders registration under the Securities Act of the shares of Novus Class A Common Stock approve such issuances referred (A) to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view be issued to the stockholders of the Company, based solely on facts or conditions arising after Company pursuant to this Agreement and (B) held by the date hereof, that stockholders of Novus immediately prior to the issuances referred Effective Time. Novus and the Company shall each pay one half of all registration and filing fees and expenses due in connection with the Registration Statement. The Company shall furnish all information concerning the Company as Novus may reasonably request in connection with such actions and the preparation of the Proxy Statement and Registration Statement. Novus and the Company each shall use their reasonable best efforts to in clause (i) above are not cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from the best interests SEC concerning the Registration Statement, (iii) to be declared effective under the Securities Act as promptly as practicable and (iv) to keep the Registration Statement effective as long as is necessary to consummate the transactions contemplated hereby. Prior to the effective date of the Company's Registration Statement, Novus shall use commercially reasonable efforts to take any action required under any applicable federal or state securities laws in connection with the issuance of shares of Novus Class A Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after finalization of the Proxy Statement, Novus shall mail the Registration Statement on Form S-4 and the Proxy Statement to its stockholders. In Each of Novus and the event that Company shall furnish all information concerning it as may reasonably be requested by the Board of Directors withdraws or adversely modifies its recommendation other party in connection with such actions and the preparation of the issuances referred to in clause (i) above, Registration Statement and the Proxy Statement. Novus and the Company will pay each shall use their reasonable best efforts to (x) cause the Purchasers Proxy Statement, when filed with the SEC, to comply in all material respects with all legal requirements applicable thereto and (based on their pro rata percentage y) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement. As promptly as practicable following the clearance of the aggregate Purchase Price) Proxy Statement by the SEC, Novus shall mail the Proxy Statement to its stockholders. Each of Novus and the Company shall furnish all information concerning it as may reasonably be requested by the other party in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) connection with such actions and the preparation of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgProxy Statement.

Proxy Statement. The Company USPI and OPC shall use its reasonable best efforts to cooperate and promptly prepare and file with the SEC, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials a Proxy Statement/Private Placement Memorandum with respect to the USPI Common Stock issuable in the Merger, a portion of which Proxy Statement shall also serve as the proxy statement with respect to the meeting of the stockholders for of OPC in connection with the purpose of approving Merger (the issuance of shares of Preferred Stock upon conversion "Proxy Statement/Private Placement Memorandum"). The respective parties will cause the Proxy Statement/Private Placement Memorandum to comply as to form in all material respects with the applicable provisions of the Notes in accordance with the terms of the Notes Securities Act and the issuance of rules and regulations thereunder. USPI shall use its best efforts to obtain all necessary state securities law or "Blue Sky" permits or approvals required to carry out the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as transactions contemplated by this Agreement and (ii) include will pay all expenses incident thereto. USPI agrees that none of the information supplied or to be supplied by USPI for inclusion in the proxy statement Proxy Statement/Private Placement Memorandum and each amendment or supplement thereto, at the recommendation time of its Board of Directors that holders mailing thereof and at the time of the Common Stock approve such issuances referred meeting of stockholders of OPC, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in clause (i) abovelight of the circumstances under which they were made, not misleading. OPC agrees that none of the information supplied or to be supplied by OPC for inclusion in the Proxy Statement/Private Placement Memorandum and each amendment or supplement thereto, at the time of mailing thereof and at the time of the meeting of stockholders of OPC, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. For purposes of the foregoing, it is understood and agreed that information concerning or relating to USPI will be deemed to have been supplied by USPI and information concerning or relating to OPC will be deemed to have been supplied by OPC. No amendment or supplement to the Proxy Statement/Private Placement Memorandum shall be made by USPI or OPC without the approval of the other party; provided, howeverthat either party may amend or supplement the Proxy Statement/Private Placement Memorandum if, that the Board upon advice of Directors may withdraw or adversely modify their recommendation of the issuances referred counsel, failure to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not do so would result in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgProxy Statement/Private Placement Memorandum containing false and misleading information.

Proxy Statement. The (a) If the Company Stockholders are required under the DGCL to adopt this Agreement in order to consummate the Merger, as soon as practicable following the Appointment Time and the end of any “subsequent offering period” permitted pursuant to this Agreement, the Company, Parent and Acquisition Sub shall jointly prepare, and the Company shall use its reasonable best efforts to prepare and file with the SEC, the Proxy Statement for use in connection with the solicitation of proxies from the Company Stockholders for use at the Company Stockholder Meeting. The Company, Parent and Acquisition Sub, as the case may be, shall furnish all information concerning the Company, on the one hand, and Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the other hand, as the other may reasonably request in connection with the preparation and filing with the SEC of the Proxy Statement. Subject to applicable Law, the Company shall use reasonable best efforts to cause the Proxy Statement to be disseminated to the Company Stockholders as promptly as practicable after following the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file filing thereof with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that confirmation from the SEC is that it will not reviewing comment on, or that it has no additional comments on, the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders Proxy Statement. Each of the Company, based solely on facts Parent and Acquisition Sub shall promptly correct any information provided by it or conditions arising after the date hereofany of its respective directors, that the issuances referred to in clause (i) above are not officers, employees, affiliates, agents or other representatives for use in the best interests of Proxy Statement if and to the Company's stockholdersextent that such information shall have become false or misleading in any material respect. In The Company shall take all steps necessary to cause the event Proxy Statement, as so corrected, to be filed with the SEC and disseminated to the Company Stockholders, in each case as and to the extent required by applicable Laws. The Company shall provide Parent, Acquisition Sub and their counsel a reasonable opportunity to review and comment on the Proxy Statement prior to the filing thereof with the SEC, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Acquisition Sub and their counsel (it being understood that the Board of Directors withdraws Parent, Acquisition Sub and their counsel shall provide any comments thereon as soon as reasonably practicable). The Company shall provide in writing to Parent, Acquisition Sub and their counsel any comments or adversely modifies its recommendation of the issuances referred to in clause (i) aboveother communications, whether written or oral, the Company will pay or its counsel may receive from the SEC or its staff with respect to the Purchasers (based on Proxy Statement promptly after such receipt, and the Company shall provide Parent, Acquisition Sub and their pro rata percentage counsel a reasonable opportunity to participate in the formulation of any response to any such comments of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal SEC or its staff (including a reasonable opportunity to five percent (5%) of the aggregate principal amount of the Notes issued hereunderreview and comment on any such response, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall which the Company put forth shall give reasonable and good faith consideration to any mattercomments made by Parent, other than those matters relating to transactions expressly contemplated by this AgreementAcquisition Sub and their counsel) and, to the holders of Common Stock for their approval without extent deemed appropriate by the prior written consent of WarburgCompany in its reasonable discretion, to participate in any discussions with the SEC or its staff regarding any such comments.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as As promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay (a) duly call, set a record date for, give notice of, convene and hold the Company Stockholders Meeting solely to approve the Purchasers (based on their pro rata percentage Merger and the consummation of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, (b) prepare and file with the SEC a preliminary proxy statement which will include all information pertaining to the holders transactions contemplated hereby or as otherwise required by the Exchange Act for inclusion or incorporation by reference therein, (c) promptly respond to any comments from the SEC with respect to the preliminary proxy statement, and (d) cause the Proxy Statement to be mailed to the Company Stockholders. The Proxy Statement will not, at the date mailed to the Company Stockholders, at the time of Common Stock for their the Company Stockholder's Meeting, or at the Effective Time, 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. If before the Effective Time, any matter is discovered by the Company that should be set forth in an amendment or a supplement to the Proxy Statement, the Company will promptly inform the Parent in writing and prepare and distribute appropriate amendments or supplements to the Proxy Statement. Except as permitted by Section 5.6(c), the Board of Directors of the Company will at all times prior to and during the Company Stockholders Meeting, recommend to the Company Stockholders the adoption of this Agreement, the Merger and the transactions contemplated hereby and will use its best efforts to solicit such approval without by the prior written consent Company Stockholders. Without limiting the generality of Warburgthe foregoing, the Company's obligation pursuant to the first sentence of this section will not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal or Superior Proposal (each as defined in Section 5.6).

Proxy Statement. As promptly as reasonably practicable after the execution of this Agreement, the Company, in consultation with Parent, shall prepare and file the Proxy Statement with the SEC; provided, that the foregoing Company obligations shall be subject to Parent, Merger Sub and the Guarantors then being in compliance in all material respects with their covenants in Section 4.12 and this Section 4.2. Parent and Merger Sub shall provide promptly to the Company such information concerning itself (and, to the extent required, as to the Guarantors) as may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto. As promptly as reasonably practicable after any comments are received from the SEC thereon, the Company shall, in consultation with Parent, prepare and file any required amendments or supplements to the Proxy Statement, and as promptly as reasonably practicable after notice from the SEC that no such comments will be made or after clearing any comments from the SEC, the Company shall prepare and file the definitive Proxy Statement with the SEC and shall cause the Proxy Statement to be mailed to its shareholders as soon as reasonably practicable after the definitive Proxy Statement is filed with the SEC and printed for mailing. The Company shall use notify Parent promptly upon the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff 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 its staff, on the other hand, with respect to the Proxy Statement or the Merger. The Company shall give Parent and its counsel a reasonable best efforts opportunity to prepare review and file comment on the Proxy Statement, including all amendments and supplements thereto, prior to their being filed with the SEC, as promptly as practicable after and shall give Parent and its counsel a reasonable opportunity to review all responses to requests for additional information and replies to comments from the date hereof but in no event later than 30 days after SEC or its staff prior to their being filed with, or sent to, the Initial ClosingSEC, preliminary proxy materials and will provide Parent with respect to a meeting copy of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance all such filings made with the terms of SEC to the Notes and extent not publicly available on the issuance of the Warrants SEC’s website. Whenever any event occurs which is required to be issued at set forth in an amendment or supplement to the Second Closing as contemplated by this Agreement. ThereafterProxy Statement, the Company shall as promptly as possible reasonably practicable inform Parent of such occurrence (or Parent shall promptly notify the Company of such occurrence to the extent related to Parent, Merger Sub or the Guarantors or information provided by or on behalf of Parent or Merger Sub or otherwise required to be included in the Proxy Statement or an amendment or supplement thereto), and the Company in consultation with Parent shall prepare and file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting mail to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review shareholders of the preliminary proxy materialsCompany (if required by applicable Legal Requirements), for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw amendment or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgsupplement.

Proxy Statement. The (a) As promptly as practicable after the execution of this Agreement and receipt of the PCAOB Audited Financials, Acquiror and the Company shall use its reasonable best efforts to prepare and file with the SECSEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Acquiror with respect to the meeting of Acquiror’s stockholders (the “Acquiror Stockholders’ Meeting”) to be held to consider approval and adoption of (i) this Agreement and the Merger, (ii) the issuance of the New Acquiror Class A Common Stock as contemplated by this Agreement, (iii) the Acquiror Certificate Amendment and (iv) any other proposals the parties deem necessary to effectuate the Merger (collectively, the “Acquiror Proposals”). The Company shall furnish all information concerning the Company as Acquiror may reasonably request in connection with such actions and the preparation of the Proxy Statement. Acquiror and the Company each shall use their reasonable best efforts to (A) cause the Proxy Statement when filed with the SEC to comply in all material respects with all Laws applicable thereto and (B) respond as promptly as reasonably practicable after to and resolve all comments received from the SEC concerning the Proxy Statement. Prior to the filing date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving Proxy Statement, Acquiror shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of Preferred Stock upon conversion of the Notes Acquiror Common Stock, in accordance with the terms of the Notes and the issuance of the Warrants each case to be issued at or issuable to the Second Closing as contemplated by Shareholders pursuant to this Agreement. ThereafterAs promptly as practicable after finalization of the Proxy Statement, the Company shall mail the Proxy Statement to the Shareholders and the Acquiror will send mail the Proxy Statement to its stockholders. Each of Acquiror and the Company shall furnish all information concerning it as promptly as possible file may reasonably be requested by the other party in connection with such actions and the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review preparation of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgProxy Statement.

Proxy Statement. As promptly as practicable after the date of this Agreement, the Company shall prepare the preliminary Proxy Statement and, after consultation with and review by Merger Sub, file the preliminary Proxy Statement with the SEC. The Company shall use its reasonable best efforts to prepare (i) obtain and file furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with and review by Merger Sub, to respond promptly to any comments made by the SEC, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials SEC with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock Proxy Statement; and (ii) promptly upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials Proxy Statement and (y) the conclusion of any SEC review of the preliminary proxy materialsProxy Statement, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants cause a definitive Proxy Statement to be issued at mailed to the Second Closing as contemplated by this Agreement and (ii) include Company's stockholders and, if necessary, after the definitive Proxy Statement shall have been so mailed, promptly circulate amended or supplemental proxy materials and, if required in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveconnection therewith, resolicit proxies; provided, however, that no such amended or supplemental proxy materials will be mailed by the Company without consultation and review by Parent or Merger Sub. The Company will promptly notify Parent and Merger Sub of the receipt of comments of the SEC and of any request from the SEC for amendments or supplements to the preliminary Proxy Statement or definitive Proxy Statement or for additional information, and will promptly supply Parent and Merger Sub with copies of all written correspondence between the Company or Company Representatives, on the one hand, and the SEC or members of its staff, on the other hand, with respect to the preliminary Proxy Statement, the definitive Proxy Statement, the Merger or any of the other transactions contemplated by this Agreement. Parent and Merger Sub will cooperate with the Company in connection with the preparation of the Proxy Statement, including, but not limited to, furnishing to the Company any and all information regarding Parent and Merger Sub and their respective affiliates as may be required to be disclosed therein. The Proxy Statement shall contain the recommendation of the Board of Directors that the Company's stockholders approve this Agreement and the transactions contemplated hereby, provided that the Board of Directors may withdraw withdraw, modify or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies change its recommendation of the issuances referred to Merger and this Agreement if it does so in clause (iaccordance with Section 5.2(b) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburghereof.

Proxy Statement. If approval of the Company’s stockholders is required by Delaware Law following the Appointment Time in order to consummate the Merger other than pursuant to Section 253 of the Delaware Law, as soon as practicable following the Appointment Time, Parent, Merger Sub and Company will prepare with the SEC a proxy statement for use in connection with the solicitation of proxies from the Company’s stockholders in connection with the Merger and the Stockholders’ Meeting (the “Proxy Statement”). Parent and Merger Sub, respectively, shall each promptly furnish the Company, in writing, all information concerning Parent and Merger Sub that may be required by applicable securities laws or reasonably requested by the Company for inclusion in the Proxy Statement. As soon as practicable following the Appointment Time, the Company shall file a preliminary Proxy Statement with the SEC. The Company shall use advise Parent, promptly after it receives notice thereof, of any request by the SEC or its reasonable best efforts staff for an amendment or revisions to prepare the Proxy Statement, or comments thereon and file responses thereto, or requests by the SEC or its staff for additional information in connection therewith and shall provide Parent and its counsel all written comments or requests for information that the Company or its counsel may receive from the SEC or its staff with respect to the Proxy Statement promptly after receipt thereof. The Company shall respond to any such comments or requests from the SEC regarding the Proxy Statement. No filing of, or amendment or supplement to, or correspondence with the SEC, as SEC or its staff with respect to the Proxy Statement shall be made by the Company without providing Parent a reasonable opportunity to participate in the formulation thereof and to review and comment thereon. As promptly as practicable after the date hereof but all comments and requests by the SEC have been resolved, in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting reasonable judgment of the stockholders for Company (or, in the purpose of approving event that the issuance of shares of Preferred Stock upon conversion SEC has informed the Company that will not review the preliminary Proxy Statement, then as promptly as practicable following the tenth (10th) day following the filing of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafterpreliminary Proxy Statement), the Company shall as promptly as possible file a definitive Proxy Statement with the SEC and disseminate the definitive proxy statement and acting through Proxy Statement to its Board stockholders. If at any time prior to the Stockholders’ Meeting, any information relating to the Parent, Merger Sub, or any of Directorstheir respective directors, officers or affiliates, should be discovered by Parent, Merger Sub or the Company (iincluding any correction to any of the information provided by them for use in the Proxy Statement) call a Special Meeting which should be set forth in an amendment or supplement to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Proxy Statement describing such information shall be promptly prepared and filed with the SEC is not reviewing and disseminated to the preliminary proxy materials Company’s stockholders, in each case as and (y) to the conclusion extent required by applicable law. The Company shall cause the Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of the Exchange Act or the rules or regulations of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw other governmental or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgself-regulatory entity.

Proxy Statement. As promptly as practicable following the execution of this Agreement, the Seller shall file with the Securities and Exchange Commission (“SEC”) a Proxy Statement on Schedule 14A (together with all amendments and supplements thereto, the “Schedule 14A”) in order to seek the Seller Shareholders’ Approval. The Company Seller shall use its reasonable best efforts to prepare cause the Schedule 14A to be disseminated in all material respects as required by applicable federal securities laws. The Seller shall use its reasonable best efforts to cause the Schedule 14A to comply in all material respects with the applicable requirements of federal securities laws. The Seller and file Buyer agree to correct promptly any information provided by any of them for use in the Schedule 14A that shall have become false or misleading in any material respect, and the Seller further agrees to use its reasonable best efforts to cause the Schedule 14A, as so corrected, to be filed with the SEC and disseminated to holders of the Seller’s shareholders, in each case in all material respects as required by applicable federal securities laws. Buyer shall promptly furnish to Seller all information concerning Buyer that is required or reasonably requested by Seller in connection with its obligations relating to the Schedule 14A. The Seller shall give Buyer and their counsel a reasonable opportunity to review and comment on the Schedule 14A before it is filed with the SEC. In addition, as promptly as practicable after the date hereof but Seller agrees to (i) provide Buyer and its counsel in no event later than 30 days after writing with any written comments the Initial Closing, preliminary proxy materials Seller or its counsel may receive from time to time from the SEC or its staff with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as Schedule 14A promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier receipt of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materialssuch comments, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in use reasonable best efforts to provide Buyer and its counsel a reasonably detailed description of any oral comments the proxy statement Seller or its counsel may receive from time to time from the recommendation of SEC or its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation staff with its financial advisors and legal counsel) that from a financial point of view respect to the stockholders of the Company, based solely on facts or conditions arising Schedule 14A promptly after the date hereofreceipt of such comments, that and (iii) unless the issuances referred Seller has exercised its rights under Section 5.06(c), provide Buyer and its counsel reasonable opportunity to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws review and comment on any written or adversely modifies its recommendation of the issuances referred oral response to in clause (i) above, the Company will pay such comments or any proposed amendment to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither Schedule 14A prior to nor at the Special Meeting shall filing thereof with the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgSEC.

Proxy Statement. As promptly as practicable, and in no event later than twenty days after the execution and delivery of this Agreement, the Company shall prepare and cause to be filed with the SEC the preliminary proxy statement (the "Preliminary Proxy Statement") to be sent to the stockholders of the Company relating to the Company Stockholder Meeting. Upon receipt by the Company from the SEC that the SEC has no comments on the Preliminary Proxy Statement, that the SEC has no further comments on the Preliminary Proxy Statement or the review period by the SEC expires without comment, the Company will file the definitive proxy statement (the "Proxy Statement") with the SEC and the Canadian Securities Authorities. The Company shall give Parent the opportunity to review and comment on the Proxy Statement and the Company shall consider Parent's reasonable comments with respect to the same. The Company will cause the Proxy Statement to be mailed to the stockholders of the Company as of the record date (determined in accordance with Section 6.2). Without limiting the generality of the foregoing, each of the Company and Parent shall, and shall instruct their respective Representatives to, reasonably cooperate with the other party hereto and its respective Representatives in the preparation of the Proxy Statement, and shall furnish the other party hereto with all information concerning it and its Affiliates as the other party hereto may deem reasonably necessary or advisable in connection with the preparation and filing of the Proxy Statement. The Proxy Statement shall include the Company Recommendation, and a copy or detailed description of the Fairness Opinion and shall state that the Committee has received the Fairness Opinion. The Company shall also use its commercially reasonable best efforts to prepare obtain any necessary consents from Xxxxx and file Xxxxx, its auditors and any other person required under Canadian Securities Laws to the use of any financial or technical information required to be included in the Proxy Statement. No amendment or supplement (including by incorporation by reference) to the Proxy Statement shall be made without the prior review and approval of Parent and the Company (which approval shall not be unreasonably withheld, conditioned or delayed), except to the extent any disclosure contained therein relates to an Adverse Recommendation Change. The Company shall cause the Proxy Statement to comply in all material respects as to form and substance with the SECrequirements of the Securities Act, the Exchange Act and Canadian Securities Laws, and shall provide stockholders of the Company with information in sufficient detail to permit them to form a reasoned judgment concerning the matters to be placed before them at the Company Stockholder Meeting. The information supplied or to be supplied by either party hereto for inclusion or incorporation by reference in the Proxy Statement shall not, on the date the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Company Stockholder 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 the light of the circumstances under which they were made, not misleading; provided that neither party makes any such covenant with respect to information supplied by the other party. Without limiting the generality of the foregoing, prior to the Effective Time, the Company and Parent shall notify each other as promptly as practicable upon becoming aware of any event or circumstance which should be described in an amendment of, or supplement to, the Proxy Statement so that any such document would not include any misstatement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, and as promptly as practicable thereafter, an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and the Canadian Securities Authorities and, to the extent required by applicable Law, the SEC or the Canadian Securities Authorities, disseminated to the stockholders of the Company. The Company and Parent shall each notify the other as promptly as practicable after the date hereof but in no event later than 30 days after receipt by such party of any written or oral comments of the Initial ClosingSEC, preliminary proxy materials the Canadian Securities Authorities or its their staff on, or of any written or oral request by the SEC, and the Canadian Securities Authorities or its their staff for amendments or supplements to, the Proxy Statement, and shall promptly supply the other with copies of all correspondence between it or any of its Representatives and the SEC and the Canadian Securities Authorities or its their staff with respect to a meeting any of the stockholders for foregoing filings. The Company shall make any other necessary filings with respect to the purpose of approving Merger under the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes Securities Act, and the issuance of Exchange Act, and applicable Canadian Securities Laws and the Warrants rules and regulations thereunder and shall use reasonable best efforts to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days ensure that such filings after the earlier date of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and prior to the Closing Date (iiand, if amended or superseded by a filing prior to the Closing Date, then on the date of such filing) include will not contain any untrue statement of a material fact or omit (or will have omitted) to state a material fact required to be stated therein or necessary in order to make the statements therein, in the proxy statement the recommendation of its Board of Directors that holders light of the Common Stock approve circumstances under which they were made, not misleading; provided that neither party makes any such issuances referred covenant with respect to in clause (i) above; provided, however, that information supplied by the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgparty.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as (a) As promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible prepare a proxy statement (together with any amendments thereof or supplements thereto, the "Proxy Statement") and, after consultation with, and approval by, the Parent Entities (which shall not be unreasonably withheld or delayed), file the preliminary Proxy Statement with the SEC. The Company shall use its commercially reasonable efforts to file the preliminary Proxy Statement with the SEC no later than twenty (20) Business Days after the definitive proxy statement and acting through its Board date of Directors, this Agreement. The Company shall use reasonable best efforts to (i) call a Special Meeting obtain and furnish the information required to be held at included by the earliest practicable date but SEC in no event later than 45 days the Proxy Statement, and respond, after consultation with the Parent Entities, promptly to any comments made by the SEC with respect to the Proxy Statement; and (ii) promptly upon the earlier of (xA) receiving notification that the SEC is not reviewing the preliminary proxy materials Proxy Statement and (yB) the conclusion of any SEC review of the preliminary proxy materialsProxy Statement, for cause the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants definitive Proxy Statement to be issued at mailed to the Second Closing as contemplated by this Agreement and (ii) include Company's stockholders and, if necessary, after the definitive Proxy Statement shall have been so mailed, promptly circulate amended or supplemental proxy materials and, if required in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveconnection therewith, resolicit proxies; provided, however, that no such amended or supplemental proxy materials will be filed with the Board of Directors may withdraw SEC or adversely modify their recommendation of mailed by the issuances referred to in clause (i) above if Company without affording the Board of Directors determines Parent Entities a reasonable opportunity for consultation and review, and the Company shall consider in good faith (after consultation with its financial advisors any comments on such materials reasonably proposed by the Parent Entities. The Company will promptly notify the Parent Entities of the receipt of comments from the SEC and legal counsel) that of any request from a financial point of view the SEC for amendments or supplements to the stockholders preliminary Proxy Statement or definitive Proxy Statement or for additional information, and will promptly supply the Parent Entities with copies of all written correspondence between the Company or its Representatives, on the one hand, and the SEC or members of its staff, on the other hand, with respect to the preliminary Proxy Statement, the definitive Proxy Statement, the Mergers or any of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement. Prior to responding to any comments of the SEC or members of its staff, the Company shall provide the Parent Entities with a reasonable opportunity to consult and review such response and the Company shall consider in good faith any comments on such response reasonably proposed by the Parent Entities. The Parent Entities, Merger Sub I and Merger Sub II will cooperate with the Company in connection with the preparation of the Proxy Statement, including promptly furnishing to the holders of Common Stock for Company any and all information regarding the Parent Entities, Merger Sub I and Merger Sub II and their approval without respective affiliates as may be required to be disclosed therein. The Proxy Statement shall contain the prior written consent of WarburgCompany Recommendation, except to the extent that the Company Board shall have effected an Adverse Recommendation Change, as permitted by and determined in accordance with Section 5.6.

Proxy Statement. The (a) As soon as practicable following the date hereof, the Company with the assistance of Parent and Merger Sub, shall prepare a proxy statement relating to the authorization and approval of this Agreement, the Plan of Merger and the Transactions by the shareholders of the Company (such proxy statement, as amended or supplemented, being referred to herein as the “Proxy Statement”). Concurrently with the preparation of the Proxy Statement, the Company, Parent and Merger Sub shall (and Parent shall procure the other Buyer Group Parties to) jointly prepare and cause to be filed with the SEC a Rule 13e-3 transaction statement on Schedule 13E-3 relating to the authorization and approval of this Agreement, the Plan of Merger and the Transactions by the shareholders of the Company (such Schedule 13E-3, as amended or supplemented, being referred to herein as the “Schedule 13E-3”). Each of the Company, Parent and Merger Sub shall (and Parent shall procure the other Buyer Group Parties to) use its reasonable best efforts so that the Proxy Statement and the Schedule 13E-3 and will comply in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Each of the Company, Parent and Merger Sub shall (and Parent shall procure the other Buyer Group Parties to) use its reasonable best efforts to prepare and file with respond promptly to any comments of the SEC, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials SEC with respect to a meeting the Proxy Statement and the Schedule 13E-3. Each of the stockholders for Company, Parent and Merger Sub shall (and Parent shall procure the purpose of approving other Buyer Group Parties to) furnish all information concerning such party to the issuance of shares of Preferred Stock upon conversion other parties as may be reasonably required in connection with the preparation, filing and distribution of the Notes Proxy Statement and the Schedule 13E-3 and the resolution of comments with respect thereto from the SEC. Each of Parent and Merger Sub shall (and shall procure the other Buyer Group Parties to) provide reasonable assistance and cooperation to the Company in accordance with the terms preparation, filing and distribution of the Notes Proxy Statement, the Schedule 13E-3 and the issuance resolution of comments from the Warrants SEC. Upon its receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to be issued at the Second Closing as contemplated by this Agreement. ThereafterProxy Statement and the Schedule 13E-3, the Company shall as promptly as possible file (and in any event within 24 hours of receipt thereof) notify Parent and Merger Sub and shall provide Parent with copies of all correspondence between the Company and its representatives, on the one hand, and the SEC and its staff, on the definitive proxy statement other hand, with respect to the Proxy Statement and acting through its Board the Schedule 13E-3. Prior to filing the Schedule 13E-3 or mailing the Proxy Statement (or in each case, any amendment or supplement thereto) or responding to any comments of Directorsthe SEC with respect thereto, the Company (i) call shall provide Parent and Merger Sub with a Special Meeting reasonable period of time to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials review and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement comment on such document or response and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines shall consider in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view all additions, deletions or changes reasonably proposed by Parent in good faith. If at any time prior to the stockholders Shareholders’ Meeting, any information relating to the Company, Parent, Merger Sub or any of their respective Affiliates, officers or directors, is discovered by the Company, Parent or Merger Sub that should be set forth in an amendment or supplement to the Proxy Statement and/or the Schedule 13E-3 so that the Proxy Statement and/or the Schedule 13E-3 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 parties hereto and the Company shall file an appropriate amendment or supplement describing such information with the SEC and, to the extent required by applicable Law, disseminate to the shareholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The (a) As promptly as practicable after the filing by Parent of a Closing Form 8-K/A, (i) Parent shall prepare and file with the SEC a proxy statement (as amended or supplemented, the “Proxy Statement”) in preliminary form to be sent to the stockholders of Parent relating to the special meeting of Parent’s stockholders (the “Parent Stockholders’ Meeting”) to be held to consider approval of the issuance of shares of Parent Class A Common Stock upon exercise of the Warrant and the issuance of shares of Parent Class A Common Stock pursuant to the Option Agreement (the “Parent Proposal”), and (ii) Parent, shall prepare and file any other filings required under the Securities Act or the Exchange Act in connection with the transactions contemplated by this Agreement. Parent shall not file the Proxy Statement (or any amendments or supplements thereto) or any other filings required under the Securities Act or the Exchange Act in connection with the transactions contemplated by this Agreement with the SEC without first providing the Company and its counsel a reasonable opportunity to review and comment thereon, and Parent shall give due consideration to, and consider in good faith, all reasonable additions, deletions or changes suggested by the Company and its counsel. Each of the Company Aggregator and the Company shall promptly furnish all information concerning itself as Parent may reasonably request in connection with such actions and the preparation of the Proxy Statement. Parent shall use its reasonable best efforts to prepare and file (A) cause the Proxy Statement when filed with the SECSEC to comply in all material respects with all legal requirements applicable thereto, and (B) respond as promptly as reasonably practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with resolve all comments received from the SEC concerning the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgProxy Statement.

Proxy Statement. As promptly as practicable (and in no event later than forty-five (45) days after the date of this Agreement), the Company shall prepare and file the Proxy Statement in preliminary form with the SEC; provided, that the Company shall provide Parent and its counsel a reasonable opportunity to review the Company’s proposed preliminary Proxy Statement in advance of filing and consider in good faith any comments reasonably proposed by Parent and its counsel. Subject to Section 6.03, the Proxy Statement shall include the recommendation of the Company Board in favor of approval and adoption of this Agreement and the Merger. Prior to filing or mailing the Proxy Statement or any related documents (or in each case, any amendment or supplement thereto), the Company shall provide Parent with an opportunity to review and comment on such document or written response and shall consider in good faith any comments on such document or response reasonably proposed by Parent. The Company shall use its reasonable best efforts to prepare and file with cause the Proxy Statement to be mailed to its stockholders as promptly as practicable following clearance of the Proxy Statement by the SEC, and in any event within five (5) Business Days after such clearance. Parent and Merger Subsidiary shall furnish to the Company all information concerning Parent and Merger Subsidiary as may be reasonably required by the Company in connection with the Proxy Statement. Each of the Company, Parent and Merger Subsidiary shall promptly correct any information provided by it for use in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Proxy Statement and to cause the Proxy Statement, as so amended or supplemented, to be filed with SEC and mailed to its stockholders, in each case as and to the extent required by Applicable Law. The Company shall (a) as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closingreceipt thereof, preliminary proxy materials provide Parent and its counsel with copies of any written comments, and advise Parent and its counsel of any oral comments, with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with Proxy Statement (or any amendment or supplement thereto) received from the SEC the definitive proxy statement and acting through or its Board of Directorsstaff, (ib) call provide Parent and its counsel a Special Meeting reasonable opportunity to be held at review the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials Company’s proposed response to such comments and (yc) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines consider in good faith (after consultation with any comments reasonably proposed by Parent and its financial advisors and legal counsel) that from a financial point of view . Notwithstanding any other provision herein to the stockholders of the Companycontrary, based solely on facts no amendment or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay supplement to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal Proxy Statement to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth modify any matter, other than those matters information solely relating to transactions expressly contemplated by this Agreement, to the holders Parent or Merger Subsidiary and any of Common Stock for their approval respective Affiliates shall be made without the prior written consent approval of WarburgParent unless required by Applicable Law (and then only after Parent has been provided an opportunity to review and comment on such amendment or supplement and the Company has considered in good faith any comments on such amendment or supplement reasonably proposed by Parent).

Proxy Statement. (a) The Company shall use its reasonable best efforts to prepare and file with the SEC, (i) as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible prepare and file with the SEC the definitive a proxy statement relating to the Company Stockholders’ Meeting (together with any amendments thereof or supplements thereto and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary other required proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and “Proxy Statement”), (ii) include in respond as promptly as reasonably practicable to any comments received from the proxy statement the recommendation of its Board of Directors that holders staff of the Common Stock approve SEC with respect to such issuances referred filings, (iii) as promptly as reasonably practicable, prepare and file any amendments or supplements necessary to be filed in clause response to any such comments, (iiv) above; provided, however, that use its reasonable best efforts to have the Board of Directors may withdraw or adversely modify their recommendation Proxy Statement cleared by the staff of the issuances referred SEC and thereafter mail to in clause its stockholders such Proxy Statement as promptly as practicable, and (iv) above if to the Board extent required by applicable Law, promptly file and mail to the Company stockholders any supplement or amendment to the Proxy Statement. The Company shall promptly notify Parent upon the receipt of Directors determines any comments (written or oral) from the SEC or its staff or any requests from the SEC or its staff for amendments or supplements to the Proxy Statement, shall consult with Parent and provide Parent with the opportunity to review and comment upon any response to such comments or requests prior to responding to any such comments or requests and shall reasonably consider Parent’s comments in good faith (after consultation faith, and shall provide Parent promptly with copies of all correspondence between the Company and its financial advisors Representatives, on the one hand, and legal counsel) that from a financial point the SEC and its staff, on the other hand. Parent shall cooperate with the Company in connection with the preparation and filing of view to the stockholders of Proxy Statement, including promptly furnishing the Company, based solely on facts or conditions arising after the date hereofupon request, that the issuances referred with any and all information as may be reasonably required to in clause (i) above are not be set forth in the best interests of Proxy Statement under the Company's stockholdersExchange Act. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the The Company will pay provide Parent a reasonable opportunity to review and comment upon the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunderProxy Statement, payable within two (2) business days of such withdrawal or modification. Neither any amendments or supplements thereto, prior to nor at filing the Special Meeting same with the SEC, and shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgreasonably consider Parent’s comments in good faith.

Proxy Statement. The Company shall promptly notify Parent (and NRG with respect to the matters relating to NRG or the NRG Sale) of the receipt of all comments from the SEC with respect to the Proxy Statement and of any request by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Parent (and NRG with respect to matters relating to NRG or the NRG Sale) copies of all correspondence between the Company and/or any of its Representatives and the SEC with respect to the Proxy Statement and shall provide Parent (and NRG with respect to the matters relating to NRG or the NRG Sale) an opportunity to review and comment on any such amendment, supplement or response to the SEC and shall consider in good faith any comments reasonably proposed by Parent (and NRG with respect to the matters relating to NRG or the NRG Sale). The Company and Parent shall each use its reasonable best efforts to prepare and file promptly provide responses to the SEC with respect to all comments received on the Proxy Statement from the SEC, . The Company shall cause the definitive Proxy Statement to be mailed as promptly as practicable after the date hereof but the SEC staff advises that it has no further comments thereon or that the Company may commence mailing the Proxy Statement; provided, that the Company shall not be required to mail the Proxy Statement prior to the seventh business day following the No-Shop Period Start Date. To the extent required by applicable Law in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting good faith judgment of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterCompany, the Company shall shall, as promptly as possible reasonably practicable prepare, file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view distribute to the stockholders of the Company, based solely on facts Company any supplement or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay amendment to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of Proxy Statement if any event shall occur which requires such withdrawal or modification. Neither action at any time prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgStockholders Meeting.

Proxy Statement. The Company shall use (a) Subject to the terms of this Agreement and to its reasonable best efforts to prepare and file with the SECfiduciary duties under Applicable Law as advised by independent counsel, as promptly as practicable after following the date hereof but of this Agreement, the Company shall, with the assistance and approval of JE Holdings, prepare and file the Proxy Statement with the SEC under the Exchange Act (such proxy statement, as amended and supplemented, the “Proxy Statement”), and shall use its commercially reasonable efforts to have the Proxy Statement cleared by the SEC. JE Holdings, Parent, Purchaser and the Company shall cooperate with each other in no event later than 30 days after the Initial Closingpreparation of the Proxy Statement, preliminary proxy materials and the Company shall notify Parent of the receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of all correspondence between the Company or any representative of the stockholders Company and the SEC. The Company shall provide Parent and its counsel the opportunity to review the Proxy Statement, including all amendments and supplements thereto, prior to it being filed with the SEC and shall give Parent and its counsel the opportunity to review all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with SEC. Subject to the terms of the Notes this Agreement and the issuance to its fiduciary duties under Applicable Law as advised by independent counsel, each of the Warrants Company, JE Holdings, Parent and Purchaser agrees to use its commercially reasonable efforts, after consultation with the other parties hereto, to respond promptly to all such comments of and requests by the SEC and to cause the Proxy Statement and all required amendments and supplements thereto to be issued mailed to the holders of Shares entitled to vote at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Stockholders’ Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgtime.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as (a) As promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting execution of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company Company, in consultation with Parent, shall as promptly as possible prepare and file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view be sent to the stockholders of the CompanyCompany in connection with the Stockholders' Meeting (as hereinafter defined) or the information statement to be sent to such stockholders, based solely on facts as appropriate (such proxy statement or conditions arising information statement, as amended or supplemented, being referred to herein as the "Proxy Statement") with the SEC under the Exchange Act. Parent shall provide promptly to the Company such information concerning itself as, in the reasonable judgment of Parent or its counsel, may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto. As promptly as practicable after any comments are received from the SEC thereon (or upon notice from the SEC that no such comments will be made), the Company shall, in consultation with Parent, prepare and file any required amendments to, and the definitive, Proxy Statement with the SEC. The Company will cause the Proxy Statement to be mailed to its stockholders as soon as practicable after the date hereofdefinitive Proxy Statement is filed with the SEC. The Company shall notify Parent promptly upon the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff 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 its staff, on the other hand, with respect to the Proxy Statement or the Merger. The Company shall give Parent and its counsel reasonable opportunity to review and comment on the Proxy Statement, including all amendments and supplements thereto, prior to its being filed with the SEC and shall give Parent and its counsel reasonable opportunity to review all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC, and will provide Parent with a copy of all such filings made with the SEC. The Company shall cause all documents that it is responsible for filing with the issuances referred SEC under this Section 5.1 to comply in clause (i) above are not all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. Whenever any event occurs which is required to be set forth in an amendment or supplement to the best interests Proxy Statement, the Company shall promptly inform Parent of such occurrence and, in consultation with Parent, file with the SEC or its staff and/or mail to stockholders of the Company's stockholders, such amendment or supplement. In Whenever Parent becomes aware of any event regarding Parent that has occurred which is required to be set forth in an amendment or supplement to the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) aboveProxy Statement, Parent shall promptly inform the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting occurrence and shall provide the Company put forth any matter, other than those matters relating with the information necessary to transactions expressly contemplated by enable the Company to comply with its obligations pursuant to this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgparagraph.

Proxy Statement. The Company shall use its reasonable best efforts If the adoption of this Agreement by the stockholders of Nyer is required under applicable law in order to consummate this transaction and the transactions contemplated thereby, Nyer shall, as promptly as practicable, and in any event within thirty (30) days following the date hereof, prepare and file with the SEC, SEC the Proxy Statement. Nyer shall respond to any comments of the SEC or its staff and shall cause the Proxy Statement to be mailed to its stockholders as promptly as reasonably practicable after the date hereof but in no event later than 30 days after resolution of any such comments. Nyer shall notify Buyer promptly upon the Initial Closingreceipt of any comments from the SEC or its staff or any other government officials and of any request by the SEC or its staff or any other government officials for amendments or supplements to the Proxy Statement and shall supply Buyer with copies of all correspondence between Nyer or any of its representatives, preliminary proxy materials on the one hand, and the SEC, or its staff or any other government officials, on the other hand, with respect to the Proxy Statement. Nyer shall cooperate and provide Buyer with a meeting reasonable opportunity to review and comment on the draft of the stockholders Proxy Statement (including each amendment or supplement thereto). Nyer shall use commercially reasonable efforts to cause all documents that Nyer is responsible for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file filing with the SEC or other regulatory authorities under this Section 8.18 to comply in all material respects with all applicable requirements of law and the definitive proxy statement rules and acting through its Board regulations promulgated thereunder. If at any time prior to the Closing Date, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of Directors, (i) call a Special Meeting material fact or omit to state any material fact required to be held at stated therein or necessary to make the earliest practicable date but statements therein, in no event later than 45 days after the earlier light of (x) receiving notification that the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by applicable law, an appropriate amendment or supplement describing such information shall be promptly filed by Nyer with the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated disseminated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view Nyer to the stockholders of Nyer. If at any time prior to the CompanyClosing Date, based solely on facts any information relating to Seller, Nyer, Buyer or conditions arising after any of their respective Affiliates or any of their respective officers or directors should be discovered by Seller, Nyer or Buyer which should be set forth in an amendment or supplement to the date hereofProxy Statement, so that the issuances referred 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 clause (i) above are not order to make the statements therein, in the best interests light of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) abovecircumstances under which they are made, not misleading, the Company will pay to party that discovers such information shall promptly notify the Purchasers (based on their pro rata percentage of other parties and an appropriate amendment or supplement describing such information shall be filed with the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this AgreementSEC and, to the holders extent required by applicable law, disseminated to the shareholders of Common Stock for their approval without Nyer. Notwithstanding anything to the contrary stated above, prior written consent to filing or mailing the Proxy Statement (or, in each case, any amendment or supplement thereto) or responding to any comments of Warburgthe SEC with respect thereto, Nyer shall provide Buyer with a reasonable opportunity to review and comment on such document or response and shall include in such document or response comments reasonably proposed by or on behalf of Buyer.

Proxy Statement. As soon as reasonably practicable following the date of this Agreement, the Company shall prepare in accordance with the provisions of the Exchange Act and file with the SEC the Proxy Statement. Parent and Merger Sub will cooperate with the Company in the preparation of the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and Merger Sub will furnish to the Company the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement. The Company shall use its reasonable best efforts to prepare have the Proxy Statement cleared by the SEC and file with the SEC, mailed to its stockholders as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closingsuch filing, preliminary proxy materials including by responding as soon as reasonably practicable to any SEC comments with respect to a meeting the Proxy Statement. The Company shall as soon as reasonably practicable notify Parent and Merger Sub of the stockholders receipt of any comments from the SEC with respect to the Proxy Statement and any request by the SEC for any amendment to the purpose Proxy Statement or for additional information and shall provide Parent with copies of approving all correspondence between the issuance of shares of Preferred Stock upon conversion Company and its representatives, on the one hand, and the SEC, on the other hand. The Company shall provide Parent with the reasonable opportunity to review and comment on drafts of the Notes in accordance with the terms Proxy Statement (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, SEC (provided that the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but include in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated such documents or responses all comments reasonably proposed by this Agreement Parent and (ii) not file, mail or otherwise deliver such document or respond to the SEC or the staff of the SEC over Parent’s reasonable objection) prior to filing such with or sending such to the SEC, and the Company will provide Parent with copies of all such filings made and correspondence with the SEC. If at any time prior to the Effective Time, any information should be discovered by any party hereto which should 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 required to be stated therein or necessary to make the statements therein, in the proxy statement the recommendation of its Board of Directors that holders light of the Common Stock approve circumstances under which they were made, not misleading, the party which discovers such issuances referred information shall promptly notify the other parties hereto and, to the extent required by applicable law, the parties will cooperate with each other in clause (i) above; providedconnection with the preparation of an appropriate amendment or supplement describing such information, however, that which amendment or supplement will be promptly filed by the Board of Directors may withdraw or adversely modify their recommendation of Company with the issuances referred to in clause (i) above if SEC and disseminated by the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view Company to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The If required under applicable Law, the Company shall use its reasonable best efforts to prepare and the Proxy Statement, file it with the SEC, SEC under the Exchange Act as promptly as practicable after Merger Subsidiary purchases Shares pursuant to the date hereof but Offer, and use all commercially reasonable efforts to have the Proxy Statement cleared by the SEC. Parent and Merger Subsidiary shall promptly furnish to the Company all information concerning Parent and Merger Subsidiary that may be required or reasonably requested in no event later than 30 days after connection with any action contemplated by this Section 6.10. Parent, Merger Subsidiary and the Initial ClosingCompany shall cooperate with each other in the preparation of the Proxy Statement, preliminary proxy materials and the Company shall notify Parent of the receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of all correspondence between the Company or any Representative of the stockholders Company and the SEC. The Company shall give Parent and its counsel a reasonable opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give Parent and its counsel a reasonable opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the purpose of approving the issuance of shares of Preferred Stock upon conversion SEC. Each of the Notes in accordance Company, Parent and Merger Subsidiary agrees to use its commercially reasonable efforts, after consultation with the terms other parties hereto to respond promptly to all such comments of and requests by the Notes and SEC. As promptly as practicable after the issuance of Proxy Statement has been cleared by the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterSEC, the Company shall as promptly as possible file with mail the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view Proxy Statement to the stockholders of the Company, based solely on facts or conditions arising after . The Proxy Statement shall include the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that recommendation by the Board of Directors withdraws of the Company that the Company's stockholders vote to approve the Merger and this Agreement unless the Board of Directors of the Company has withdrawn or adversely modifies modified its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) accordance with Section 6.03 in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgconnection with a Superior Proposal.

Proxy Statement. The Company shall use its reasonable best efforts to prepare Promptly after execution and file with the SEC, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting delivery of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible prepare and shall file with the SEC as soon as is reasonably practicable a preliminary Proxy Statement, together with a form of proxy, with respect to the definitive proxy statement and acting through its Board of Directors, (i) call a Special Stockholders’ Meeting to be held at which the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review stockholders of the preliminary proxy materials, for the sole purpose of voting Company will be asked to vote upon the approval adoption of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include shall use commercially reasonable efforts to have the Proxy Statement and form of proxy cleared by the SEC as promptly as practicable, and promptly thereafter shall mail the definitive Proxy Statement and form of proxy to stockholders of the Company. The term “Proxy Statement” shall mean such proxy or information statement and all amendments or supplements thereto, if any, similarly filed and mailed. Parent will provide the Company with any information with respect to Parent, Merger Sub, Parent’s business or the Financings or any alternative financing arrangement that may be required in order to effectuate the preparation and filing of the Proxy Statement pursuant to this Section 5.1. The Company will provide Parent and its counsel with a reasonable opportunity to review and comment on the Proxy Statement prior to its filing and will incorporate such comments that the Company determines are reasonable. The Company will respond to, and provide Parent and its counsel with a reasonable opportunity to participate in the proxy statement the recommendation of its Board of Directors that holders response of the Common Stock approve Company to, any comments from the SEC and will notify Parent promptly upon the receipt of any comments from the SEC in connection with the filing of, or amendments or supplements to, the Proxy Statement. 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 issuances referred occurrence and cooperate in filing with the SEC and/or mailing to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation stockholders of the issuances referred to in clause Company such amendment or supplement. Each of Parent and the Company shall cooperate and the Company shall provide Parent (i) above if the Board of Directors determines in good faith (after consultation with and its financial advisors and legal counsel) that from with a financial point of view reasonable opportunity to review and comment on the Proxy Statement and on any amendment or supplement to the Proxy Statement prior to filing such with the SEC. Parent will furnish the Company with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to Parent and its Subsidiaries, to comply with applicable law after the mailing thereof to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred . The Proxy Statement shall comply as to form in clause (i) above are not in the best interests all material respects with all applicable requirements of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgfederal securities laws.

Proxy Statement. The (a) As promptly as practicable after the execution of this Agreement, BLAC (with the assistance and cooperation of the Company as reasonably requested by BLAC) shall use its reasonable best efforts to prepare and file with the SECSEC a proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of BLAC for the meeting of BLAC’s stockholders (the “BLAC Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Business Combination, (2) the second amended and restated BLAC Certificate of Incorporation, (3) the Equity Plan, (4) the election of the Initial Post-Closing BLAC Directors to serve as the members of the BLAC Board as of immediately following the Effective Time and until their respective successors are duly elected or appointed and qualified, and (5) any other proposals the Parties deem necessary to effectuate the Business Combination (collectively, the “BLAC Proposals”). The Company shall furnish all information concerning the Company, the Company Subsidiaries and LBV and any affiliates of LBV to be acquired pursuant to the LBV Acquisition as BLAC may reasonably request in connection with such actions and the preparation of the Proxy Statement. BLAC and the Company each shall use their reasonable best efforts to (i) cause the Proxy Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement, (iii) to keep the Proxy Statement current as long as is necessary to consummate the transactions contemplated hereby. Prior to the effective date of the Proxy Statement, BLAC shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of BLAC Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after the date hereof but in no event later than 30 days after Proxy Statement has been resolved of all comments from the Initial ClosingSEC, preliminary proxy materials with respect to a meeting each of the stockholders for Company and BLAC shall mail the purpose Proxy Statement to their respective stockholders. Each of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes BLAC and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall furnish all information concerning it as promptly as possible file may reasonably be requested by the other Party in connection with such actions and the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review preparation of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgProxy Statement.

Proxy Statement. The Company (a) As promptly as practicable after the execution of this Agreement, Seller shall use its reasonable best efforts to prepare and file with the SEC, and shall use all reasonable efforts to have promptly cleared by the SEC, and promptly thereafter shall mail to its stockholders, a proxy statement and a form of proxy (collectively, the "Proxy Statement"), as may be amended and supplemented, to be used in connection with the special meeting (the "Stockholders' Meeting") of Seller's stockholders to consider the Asset Sale (the "Stockholders' Meeting"). Seller shall provide Purchaser with a reasonable opportunity to review and comment upon the Proxy Statement prior to its filing with the SEC and distribution to Seller's stockholders, and Purchaser shall use reasonable efforts to provide its comments thereon as promptly as practicable after delivery of the date hereof but in no event later than 30 days after Proxy Statement to Purchaser and its legal counsel. Seller shall notify Purchaser promptly of the Initial Closing, preliminary proxy materials receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the stockholders SEC for amendments or supplements to the purpose Proxy Statement and will supply Purchaser with copies of approving all correspondence between Seller and its representatives, on the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes one hand, and the issuance SEC or the members of its staff, on the Warrants other hand, with respect to the Proxy Statement. Seller and Purchaser shall each use reasonable efforts to obtain and furnish information required to be issued at included in the Second Closing as contemplated Proxy Statement; and Seller, after consultation with Purchaser, shall use reasonable efforts (and Purchaser agrees to reasonably cooperate with Seller in connection therewith) to respond promptly to any comments made by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC with respect to the definitive proxy statement Proxy Statement and acting through its Board of Directors, (i) call a Special Meeting cause the Proxy Statement to be held mailed to its stockholders at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation time. Seller shall notify Purchaser of its Board of Directors that holders of intention to mail the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view Proxy Statement to the stockholders of Seller at least 48 hours prior to the Company, based solely on facts or conditions arising after intended time of such mailing. The Proxy Statement shall include the date hereof, that the issuances referred to in clause (i) above are not in the best interests recommendation of the CompanySeller's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation in favor of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage Asset Sale and approval of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, unless independent outside legal counsel to Seller shall advise Seller's Board of Directors and the directors' fiduciary duties under applicable law make such recommendation inappropriate. (b) The information included in the Proxy Statement shall not, at the date 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 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. If at any time prior to the holders Stockholders' Meeting, any event or circumstance relating to Seller or any of Common Stock its Subsidiaries, or its or their respective officers or directors, is discovered by Seller which should be set forth in a supplement to the Proxy Statement, Seller shall promptly inform Purchaser. All documents that Seller is responsible for their approval without filing with the prior written consent SEC in connection with the transactions contemplated herein will comply as to form and substance in all material respects with the applicable requirements of Warburg.the Exchange Act. 15 21 (c) Each of the parties will file (and Seller will cause each of its Subsidiaries to file) any Notification and Report Forms and related material that it may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act, will use its reasonable best efforts to obtain (and Seller will cause each of its Subsidiaries to use its reasonable best efforts to obtain) an early termination of the applicable waiting period, and will make (and Seller will cause each of its Subsidiaries to make) any further filings pursuant thereto that may be necessary, proper, or advisable. 7.02

Proxy Statement. The Company shall file (as promptly as practicable (and in any event within twenty (20) Business Days) following the Signing Date) a proxy statement for the Company Stockholder Meeting with the SEC under the Exchange Act (the “Proxy Statement”), and shall use its reasonable best efforts to prepare and file have the Proxy Statement cleared by the SEC. The Company shall cause the Proxy Statement to comply in all material respects with the rules and regulations promulgated by the SEC. Buyer, as promptly as practicable after Merger Sub and the date hereof but Company shall cooperate with each other in no event later than 30 days after the Initial Closingpreparation of the Proxy Statement, preliminary proxy materials and the Company shall notify Buyer of the receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Buyer promptly copies of all correspondence between the Company or any representative of the stockholders Company and the SEC. The Company shall give Buyer and its counsel the opportunity to review the Proxy Statement prior to each filing of any version thereof (including, for the purpose avoidance of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafterdoubt, the Company shall as promptly as possible file any preliminary version thereof) with the SEC and shall give Buyer and its counsel the definitive proxy statement opportunity to review all amendments and acting through its Board supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC. The Company shall incorporate all comments to any version of Directorsthe Proxy Statement reasonably proposed by Buyer, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that Merger Sub or their counsel, and shall not file any version thereof with the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgBuyer, Merger Sub or their counsel (such consent not to be unreasonably withheld). Each of the Company, Buyer and Merger Sub agrees to use its reasonable best efforts, after consultation with the other parties hereto, to respond promptly to all such comments of and requests by the SEC and to cause the Proxy Statement and all required amendments and supplements thereto to be mailed to the holders of Common Shares entitled to vote at the Company Stockholder Meeting at the earliest practicable time. All filings by the Company with the SEC in connection with the Transactions, and all mailings by the Company to its stockholders (in addition to the Proxy Statement) in connection with the Transactions, shall be subject to the same review and comment procedures as set forth in this Section 7.2. Each of Buyer and the Company shall ensure that none of the information supplied by it or on its behalf for inclusion or incorporation by reference in the Proxy Statement will, at the date the Proxy Statement is first mailed to the Company’s stockholders and at the time of the Company Stockholder 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. If at any time prior to the approval of this Agreement by the Company Stockholder Meeting, any information relating to the Company or any of its Affiliates, directors or officers is discovered by the Company, or any information relating to Buyer or Merger Sub or any of their respective Affiliates, directors or officers is discovered by Buyer, and such information 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 to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties and (subject to the comment and review procedures set forth above in this Section 7.2) an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by law, disseminated to the Company’s stockholders.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as As promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting execution of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, Parent, Merger Sub and the Company shall as promptly as possible jointly prepare and the Company shall file with the SEC the definitive proxy statement of the Company (the "Proxy Statement") relating to the special meeting of the Company's stockholders (the "Company Stockholders Meeting") to be held to consider approval and acting through its Board adoption of Directorsthis Agreement and the Merger. Substantially contemporaneously with the filing of the Proxy Statement with the SEC, copies of the Proxy Statement shall be provided to the National Association of Securities Dealers, Inc. ("NASD"). Parent, Merger Sub or the Company, as the case may be, shall furnish all information concerning Parent, Merger Sub or the Company as the other party may reasonably request in connection with such actions and the preparation of the Proxy Statement and any other filings required to be made in connection within this Agreement and the transactions contemplated hereby (collectively, the "Other Filings"). As promptly as practicable the Proxy Statement will be mailed to the stockholders of the Company. The Company shall cause the Proxy Statement and the Other Filings to be filed by it to comply as to form and substance in all material respects with the applicable requirements of (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after Exchange Act, including Sections 14(a) and 14(d) thereof and the earlier respective regulations promulgated thereunder, (ii) the Securities Act of 1933, as amended (xthe "Securities Act"), (iii) receiving notification that the SEC is not reviewing rules and regulations of the preliminary proxy materials NASD and (yiv) Delaware Corporate Law. The Proxy Statement shall include the conclusion of any SEC review recommendation of the preliminary proxy materials, for the sole purpose Board of voting upon the approval Directors of the issuance of shares of Preferred Stock upon conversion Company to the stockholders of the Notes Company that such stockholders vote in accordance with the terms favor of the Notes and the issuance adoption of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveMerger; provided, however, that subject to Section 5.10(b), the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred Company may, at any time prior to in clause (i) above the Effective Time, withdraw, modify or change any such recommendation if the Board of Directors of the Company determines in its good faith (after consultation judgment that it is required to do so in order to comply with its financial advisors duties to the Company's shareholders under applicable Law. The Proxy Statement will include a copy of the written opinion of Deutsche Banc Alex. Xxxxx. No amendment or supplement to the Proxy Statement will be made without the approval of each of Parent, Merger Sub and legal counselthe Company, which approval shall not be unreasonably withheld or delayed, unless such amendment or supplement to the Proxy Statement is required to be made by the Company under applicable Laws. Each of Parent, Merger Sub and the Company will advise the other, promptly after it receives notice thereof, or of any request by the SEC or the NASD for amendment of the Proxy Statement and the Other Filings or comments thereon and responses thereto or requests by the SEC for additional information. The information supplied by the Company for inclusion in the Proxy Statement shall not, at (i) that from a financial point of view the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of the Company, based solely on facts (ii) the time of the Company Stockholders Meeting, and (iii) the Effective Time, contain any untrue statement of a material fact or conditions arising after fail to state any material fact required to be stated in the date hereofProxy Statement or necessary in order to make the statements in the Proxy Statement not misleading. If at any time prior to the Effective Time any event or circumstance relating to the Company or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Proxy Statement, the Company shall promptly inform Parent and Merger Sub. All documents that the issuances referred Company is responsible for filing with the SEC in connection with the transactions contemplated hereby will comply as to form and substance in clause all material respects with the applicable requirements Law, including Delaware Corporate Law, the Securities Act and the Exchange Act. The information supplied by Parent and Merger Sub for inclusion in the Proxy Statement shall not, at (i) above the time the Proxy Statement (or any amendment of or supplement to the Proxy Statement) are not first mailed to the stockholders the Company, (ii) the time of the Company Stockholders Meeting, and (iii) the Effective Time, contain any untrue statement of a material fact or fail to state any material fact required to be stated in the best interests of Proxy Statement or necessary in order to make the statements in the Proxy Statement not misleading. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent or Merger Sub that should be set forth in an amendment or a supplement to the Proxy Statement, Parent and Merger Sub shall promptly inform the Company's stockholders. In All documents that Parent and Merger Sub are responsible for filing in connection with the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this AgreementAgreement will comply as to form and substance in all material aspects with the applicable requirements of Law, to including Delaware Corporate Law, the holders of Common Stock Securities Act and the Exchange Act. The information supplied by any party for their approval without the prior written consent of Warburginclusion in another party's Other Filing will be true and correct in all material respects.

Proxy Statement. The Company and Acquiror shall use its reasonable best efforts work in good faith with one another in connection with (x) the drafting of the Proxy Statement and (y) responding in a timely manner to comments on the Proxy Statement from the SEC. Acquiror and the Company shall jointly prepare and Acquiror shall file with the SEC, mutually acceptable materials which shall include a proxy statement in connection with the Transactions (as promptly as practicable after amended or supplemented, the date hereof but “Proxy Statement”) to be sent to the stockholders of Acquiror in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting advance of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes Special Meeting in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materialsAcquiror Organizational Documents, for the sole purpose of voting upon of, among other things: (A) providing Acquiror’s stockholders with the approval of the issuance of opportunity to redeem shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Acquiror Class A Common Stock approve by tendering such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are shares for redemption not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within later than two (2) business days of such withdrawal or modification. Neither Business Days prior to nor the originally scheduled date of the Special Meeting (the “Acquiror Stockholder Redemption”); and (B) soliciting proxies from holders of Acquiror Class A Common Stock to vote at the Special Meeting shall Meeting, as adjourned or postponed, in favor of the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without Acquiror Stockholder Matters. Without the prior written consent of Warburgthe Company, the Acquiror Stockholder Matters shall be the only matters (other than procedural matters and annual meeting customary matters) which Acquiror shall propose to be acted on by Acquiror’s stockholders at the Annual and Special Meeting, as adjourned or postponed. The Proxy Statement will comply in all material respects as to form and substance with the applicable requirements of the Exchange Act and the rules and regulations thereunder. Acquiror shall (I) file the definitive Proxy Statement with the SEC, (II) cause the Proxy Statement to be mailed to its stockholders of record, as of the record date to be established by the board of directors of Acquiror in accordance with Section 8.02(c), as promptly as practicable (but in no event less than five (5) Business Days except as otherwise required by applicable Law) following the earlier to occur of: (x) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period specified in Rule 14a-6(a) under the Exchange Act; or (y) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC (such earlier date, the “Proxy Clearance Date”) and (III) promptly commence a “broker search” in accordance with Rule 14a-12 of the Exchange Act.

Proxy Statement. The Company (a) As promptly as practicable after the execution of this Agreement, Seller shall use its reasonable best efforts to prepare and file with the SEC, and shall use all reasonable efforts to have promptly cleared by the SEC, and promptly thereafter shall mail to its stockholders, a proxy statement and a form of proxy (collectively, the "Proxy Statement"), as may be amended and supplemented, to be used in connection with the special meeting (the "Stockholders' Meeting") of Seller's stockholders to consider the Asset Sale (the "Stockholders' Meeting"). Seller shall provide Purchaser with a reasonable opportunity to review and comment upon the Proxy Statement prior to its filing with the SEC and distribution to Seller's stockholders, and Purchaser shall use reasonable efforts to provide its comments thereon as promptly as practicable after delivery of the date hereof but in no event later than 30 days after Proxy Statement to Purchaser and its legal counsel. Seller shall notify Purchaser promptly of the Initial Closing, preliminary proxy materials receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the stockholders SEC for amendments or supplements to the purpose Proxy Statement and will supply Purchaser with copies of approving all correspondence between Seller and its representatives, on the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes one hand, and the issuance SEC or the members of its staff, on the Warrants other hand, with respect to the Proxy Statement. Seller and Purchaser shall each use reasonable efforts to obtain and furnish information required to be issued at included in the Second Closing as contemplated Proxy Statement; and Seller, after consultation with Purchaser, shall use reasonable efforts (and Purchaser agrees to reasonably cooperate with Seller in connection therewith) to respond promptly to any comments made by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC with respect to the definitive proxy statement Proxy Statement and acting through its Board of Directors, (i) call a Special Meeting cause the Proxy Statement to be held mailed to its stockholders at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation time. Seller shall notify Purchaser of its Board of Directors that holders of intention to mail the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view Proxy Statement to the stockholders of Seller at least 48 hours prior to the Company, based solely on facts or conditions arising after intended time of such mailing. The Proxy Statement shall include the date hereof, that the issuances referred to in clause (i) above are not in the best interests recommendation of the CompanySeller's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation in favor of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage Asset Sale and approval of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, unless independent outside legal counsel to Seller shall advise Seller's Board of Directors and the holders of Common Stock for their approval without the prior written consent of Warburgdirectors' fiduciary duties under applicable law make such recommendation inappropriate.

Proxy Statement. The Company As promptly as practicable following the date of this Agreement, and in any event not later than 45 days from the date of this Agreement, Seller shall use its reasonable best efforts to prepare and file with the SEC, as promptly as practicable after the date hereof but SEC (i) a proxy statement and any necessary amendments and supplements thereto in no event later than 30 days after the Initial Closing, preliminary proxy materials connection with Seller Stockholder Approval and (ii) a consent solicitation statement and any necessary amendments and supplements thereto with respect to a meeting of the stockholders for Trust Preferred Securities Consent Solicitation (collectively, the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes “Proxy Statements”) in accordance with the terms of the Notes Securities Act and the issuance of Exchange Act and shall use all reasonable efforts to have the Warrants to be issued at Proxy Statements cleared by the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveSEC; provided, however, that prior to filing, Seller shall deliver a copy of the proposed Proxy Statements to Buyer and provide Buyer with a reasonable time period in which to review and comment upon such filings, it being agreed that Seller will not make any such filings without the prior consent of Buyer, such consent not to be unreasonably withheld. Seller shall promptly provide to Buyer copies of any written comments received from the SEC and shall promptly advise Buyer of any oral comments received from the SEC. Buyer shall be entitled to review and comment on any proposed amendments to the Proxy Statements. As promptly as practicable after the Proxy Statements have been cleared by the SEC, Seller shall mail the Proxy Statements to its stockholders and the holders of the Trust Preferred Securities, as applicable, as of the record date for Seller’s Stockholder Meeting. Subject to the ability of the Board of Directors may withdraw or adversely modify their of Seller to effect a Change in Board Recommendation pursuant to Section 5.10(d), the proxy statement with respect to the Seller’s Stockholders Meeting shall include the recommendation of the issuances referred to in clause (i) above if the Seller’s Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to Seller vote in clause (i) above are not in the best interests favor of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. The Company shall use its reasonable best efforts to (i) as promptly as practicable prepare and file with the SEC, as promptly as practicable after providing Parent with a reasonable opportunity to review and comment thereon, (ii) have cleared by the date hereof but in no event later than 30 days after the Initial Closing, preliminary SEC and (iii) mail to its Common Shareholders and Preferred Shareholders a proxy materials statement and to its Common Shareholders a form of proxy with respect to a meeting the Special Meeting in connection with the REIT Merger (such proxy statement and the form of proxy, including all amendments, supplements, or modifications thereto, is herein referred to as the “Proxy Statement”). The Proxy Statement shall comply in all material respects with the Exchange Act and shall include all information and statements which any Party shall reasonably believe to be necessary for inclusion therein. The Company agrees that none of the stockholders for information concerning or related to the purpose Company or any of approving the issuance of shares of Preferred Stock upon conversion its Subsidiaries or any of the Notes Company Properties contained or incorporated by reference in accordance the Proxy Statement will, at the date it is first mailed to the shareholders of the Company and at the time of the Special 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 the light of the circumstances under which they are made, not misleading. The Company shall use reasonable efforts to obtain and furnish the information required to be included in the Proxy Statement, promptly inform Parent of the receipt of comments from the SEC, and respond promptly, after review and comment by Parent, to any comments made by the SEC with respect to the Proxy Statement and any preliminary version thereof. Parent shall as expeditiously as practicable supply all information concerning itself, REIT Merger Sub, OP Holdco and OP Merger Sub and their directors, officers, shareholders and Affiliates as reasonably may be requested by the Company in connection with the terms preparation of the Notes and the issuance of the Warrants Proxy Statement. Whenever any event occurs, or there is any change in facts, which is required to be issued at set forth in an amendment or supplement to the Second Closing as contemplated Proxy Statement, the Company on the one hand, and Parent on the other hand, shall promptly inform the other of such occurrence with respect thereto and, promptly after review and comment thereon by this Agreement. ThereafterParent, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting and/or mail to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve Shareholders and Preferred Shareholders, such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw amendment or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view supplement to the stockholders Proxy Statement. Table of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.Contents

Proxy Statement. The Company Envirogen shall use its reasonable best efforts to prepare and file with the SEC, as promptly as practicable after practicable, --------------- with the date hereof but cooperation of the Company and the Stockholders, a proxy statement (the "Proxy Statement") in no event later than 30 days after compliance with the Initial Closingprovisions of the Securities Exchange Act of 1934, preliminary proxy materials with respect to a meeting as amended (the "Exchange Act"), for purposes of soliciting the approval of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterEnvirogen of, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directorsamong other things, (i) call a Special Meeting this Agreement and the transactions contemplated hereby, (ii) the Securities Purchase Agreement and the transactions contemplated thereby (iii) the amendment to be held at Envirogen's Certificate of Incorporation to increase the earliest practicable date but in no event later than 45 days after the earlier number of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials authorized shares of Envirogen Common Stock from 20,000,000 to 50,000,000, and (yiv) an amendment to Envirogen's Option Plan (as defined in Section 5.14 hereof) to, among other things, increase the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance number of shares of Preferred Envirogen Common Stock reserved for issuance upon conversion the exercise of options granted under such plan from 2,000,000 to 3,000,000. The Company and each Stockholder agree to provide promptly to Envirogen for inclusion in the Proxy Statement, or any amendments or supplements thereto, such information concerning its business and financial statements and affairs as, in the reasonable judgment of Envirogen or its counsel, may be required by applicable law or the rules and regulations of the Notes in accordance with the terms of the Notes Securities and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and Exchange Commission (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its including without limitation audited financial advisors and legal counsel) that from a financial point of view to the stockholders statements of the Company) and unaudited interim financial statements of the Company and to cause its counsel and auditors to cooperate with Envirogen's counsel and auditors in the preparation of the Proxy Statement. The Company and the Stockholders agree that the information to be included in the Proxy Statement with respect to the Company and its business and the Stockholders shall not, based solely on facts or conditions arising after at the date hereofthe Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Envirogen, that or at any time thereafter up to and including the issuances referred to in clause (i) above are not in the best interests time of the Company's stockholders. In Envirogen Stockholder Meeting, be false or misleading with respect to any material fact required to be stated therein, or omit to state any material fact necessary in order to make the event that the Board of Directors withdraws or adversely modifies its recommendation statements made therein, in light of the issuances referred circumstances under which they are made, not misleading; or omit to state any material fact necessary to correct any statement in clause (i) above, any earlier communication with respect to the solicitation of proxies for the Envirogen Stockholder Meeting which has become false or misleading. The Company and the Stockholders will promptly advise Envirogen in writing if at any time prior to the Effective Time of the Merger the Company will pay or any Stockholder shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Purchasers (based on their pro rata percentage of Proxy Statement in order to make the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal statements contained or incorporated by reference therein not misleading or to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgcomply with applicable law.

Proxy Statement. The Company In connection with the Mercer Shareholder Meeting, as soon as practicable after the date of this Agreement, Mercer shall use its reasonable best efforts prepare a proxy statement which complies as to prepare form in all material respects with the applicable provisions of the Exchange Act (the “Mercer Proxy Statement”) and file shall provide a copy of such Mercer Proxy Statement to Buyer for review and comment prior to filing such Mercer Proxy Statement with the SEC. As promptly as practical following Xxxxxx’x receipt of Buyer’s comments to the Mercer Proxy Statement, Mercer shall incorporate such comments as it deems appropriate, after consultation with its counsel, finalize the Mercer Proxy Statement and file such Mercer Proxy Statement with the SEC. Mercer shall use commercially reasonable efforts to have the Mercer Proxy Statement cleared by the SEC and mailed to its shareholders as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance its filing with the terms SEC. Mercer shall inform Buyer of any and all written and oral comments Mercer receives from the Notes SEC on the preliminary Mercer Proxy Statement and shall permit the issuance of the Warrants Buyer to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file review and comment on any revised versions prior to filing with the SEC and the definitive proxy statement and acting through final Mercer Proxy Statement prior to Mercer mailing the final Mercer Proxy Statement to its Board of Directorsshareholders. If, (i) call a Special Meeting at any time prior to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of Effective Time, any SEC review information relating to Mercer, any of the preliminary proxy materialsMercer Subsidiaries or any of their respective officers or directors should be discovered by Buyer or Mercer that should be set forth in an amendment or supplement to the Mercer Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, for the sole purpose of voting upon the approval in light of the issuance circumstances under which they were made, not misleading, then the party that discovers such information shall promptly notify the other party hereto and, to the extent required by Applicable Law, Mercer shall promptly prepare an amendment or supplement describing such information and provide a copy of shares of Preferred Stock upon conversion of the Notes in accordance such amendment to Buyer for review and comment prior to filing such amendment with the terms SEC. As promptly as practicable following Xxxxxx’x receipt of the Notes and the issuance of the Warrants Buyer’s comments to be issued at the Second Closing such amendment, Mercer shall incorporate such comments as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; providedit deems appropriate, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors counsel, and legal counsel) that from a financial point of view file such amendment with the SEC and disseminate such amendment to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgshareholders.

Proxy Statement. The If required under applicable law, the Company shall use its reasonable best efforts to prepare and the Proxy Statement, file it with the SEC, SEC under the Exchange Act as promptly as practicable after Merger Subsidiary purchases Shares pursuant to the date hereof but Offer, and use all commercially reasonable efforts to have the Proxy Statement cleared by the SEC. Parent and Merger Subsidiary shall promptly furnish to the Company all information concerning Parent and Merger Subsidiary that may be required or reasonably requested in no event later than 30 days after connection with any action contemplated by this Section 5.10. Parent, Merger Subsidiary and the Initial ClosingCompany shall cooperate with each other in the preparation of the Proxy Statement, preliminary proxy materials and the Company shall notify Parent of the receipt of any comments of the SEC with respect to a meeting the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of all correspondence between the Company or any Representative of the stockholders Company and the SEC. The Company shall give Parent and its counsel a reasonable opportunity to review and comment on the Proxy Statement prior to its being filed with the SEC and shall give Parent and its counsel a reasonable opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the purpose of approving the issuance of shares of Preferred Stock upon conversion SEC. Each of the Notes in accordance Company, Parent and Merger Subsidiary agrees to use its commercially reasonable efforts, after consultation with the terms other parties hereto, to respond promptly to all such comments of and requests by the Notes and SEC. As promptly as practicable after the issuance of Proxy Statement has been cleared by the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterSEC, the Company shall as promptly as possible file with mail the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view Proxy Statement to the stockholders of the Company, based solely on facts or conditions arising after . The Proxy Statement shall include the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that recommendation by the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred Company that the Company’s stockholders vote to in clause (i) above, approve the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by Merger and this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. If the Closing occurs, the Company shall call and hold a special meeting of its stockholders no later than four months following the Closing Date (the “Meeting End Date”) to vote on proposals (collectively, the “Stockholder Proposal”) to approve the issuance of shares of Company Common Stock in connection with the conversion of the Purchased Preferred Shares into Company Common Stock, for purposes of Section 312.03 of the NYSE Listed Company Manual. The Board of Directors shall recommend to the Company’s stockholders that such stockholders approve the Stockholder Proposal, and shall not modify or withdraw such resolution. In connection with such meeting, the Company shall promptly prepare (and the Purchasers will reasonably cooperate with the Company to prepare) and file with the SEC a preliminary proxy statement, shall use its reasonable best efforts to prepare solicit proxies for such stockholder approval and file with shall use its reasonable best efforts to respond to any comments of the SEC, SEC or its staff and to cause a definitive proxy statement related to such stockholders’ meeting to be mailed to the Company’s stockholders as promptly as practicable after clearance by the date hereof but in no SEC. If at any time prior to such stockholders’ meeting there shall occur any event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants that is required to be issued at set forth in an amendment or supplement to the Second Closing as contemplated by this Agreement. Thereafterproxy statement, the Company shall as promptly as possible file practicable prepare and mail to its stockholders such an amendment or supplement. The Company agrees that each proxy statement referred to in this Section 4.05 shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder and that none of the information included or incorporated by reference in any such proxy statement will, at the date it is filed with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view mailed to the stockholders of the Company, based solely on facts Company or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders time of Common Stock for their approval without the prior written consent of Warburg.the

Proxy Statement. As soon as practicable, the Company shall file with the Commission under the Exchange Act, and shall use its best efforts to have cleared by the Commission, a proxy statement with respect to the Shareholder Meeting referred to herein (the "Proxy Statement") and a Schedule 13e-3 as required by the rules and regulations of the Commission. Parent, Merger Sub and the Company shall also take any action required to be taken under Blue Sky Laws in connection with the Merger. Parent, Merger Sub and the Company shall cooperate with each other in taking such action and in the preparation of the Proxy Statement and Schedule 13e-3. Each of the Company, Parent and Merger Sub agrees to use its reasonable efforts, after consultation with the other parties hereto, to respond promptly to all such comments of or requests by the Commission and to cause the Proxy Statement and all required amendments and supplements thereto to be mailed to the holders of Company Shares entitled to vote at the Shareholder Meeting at the earliest practicable time. The Proxy Statement shall include (A) the recommendation of the Board of Directors of the Company that the shareholders of the Company approve and adopt this Agreement, unless the Board of Directors or the Special Committee, after consultation with counsel, determines to withdraw such recommendation in light of their respective applicable fiduciary duties, and (B) the opinion of Adviser that the Merger Consideration to be received by the holders of Public Shares in the Merger is fair to such holders from a financial point of view. The Company shall use its reasonable best efforts to prepare and file with solicit from holders of Public Shares entitled to vote at the SECShareholders Meeting proxies in favor of such approval. At the Shareholder Meeting, as promptly as practicable after Parent shall cause the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting shares of Common Stock of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion Company owned by Parent to be voted in favor of the Notes in accordance with the terms approval and adoption of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgMerger.

Proxy Statement. (a) As soon as practicable following the date of this Agreement, the Company shall prepare and no later than the tenth (10th) Business Day following the public announcement of the execution and delivery of this Agreement, the Company shall file with the SEC the Proxy Statement for use in connection with the solicitation of proxies from shareholders of the Company in connection with the Merger and the Company Shareholders’ Meeting. The Company and Parent, as the case may be, shall furnish all information 60 concerning the Company or Parent as the other party hereto may reasonably request in connection with the preparation and filing with the SEC of the Proxy Statement. Subject to all applicable Laws, the Company shall use its reasonable best efforts to prepare and file with cause the SEC, Proxy Statement to be disseminated to shareholders of the Company as promptly as practicable after following the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance filing thereof with the terms of SEC. Notwithstanding anything to the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by contrary set forth in this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement Proxy Statement, and acting through its Board of Directors, (i) call a Special Meeting to be held at shall cause the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review mailing of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view definitive Proxy Statement to the stockholders shareholders of the Company, based solely on facts or conditions arising after prior to the date hereof, that second (2nd) Business Day immediately following the issuances referred to in clause later of (i) above are receipt and resolution of SEC comments thereon, or (ii) the expiration of the 10-day waiting period provided in Rule 14a-6(a) promulgated under the Exchange Act. No filing of, or amendment or supplement to, or correspondence with the SEC or its staff with respect to the Proxy Statement shall be made by the Company without providing Parent a reasonable opportunity to review and comment thereon, including in such filings, amendments, supplements and correspondence all comments reasonably proposed by Parent and receiving the approval of Parent (which approval shall not be unreasonably withheld or delayed). The Company shall advise Parent, promptly after it receives notice thereof, of any request by the SEC or its staff for an amendment or revisions to the Proxy Statement, or comments thereon and responses thereto, or requests by the SEC or its staff for additional information in connection therewith, and shall provide Parent with copies of all correspondence between the best interests Company or any of its advisors or representatives, on the one hand, and the SEC, or its staff or any other government officials, on the other hand, with respect to the Proxy Statement or other filing with the SEC. If the Company or its outside legal counsel intends to initiate a telephone conference or meet with the SEC and its staff related to the Proxy Statement, this Agreement or the Merger, the Company shall so inform the Parent and solicit input on the items planned to be discussed during such telephone conference or meeting. If at any time prior to the Company Shareholders’ Meeting, any information relating to the Company or Parent, or any of their respective directors, officers or Affiliates, 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 does not include any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Proxy Statement describing such information shall be promptly prepared and filed with the SEC and, to the extent required by applicable Law, disseminated to the shareholders of the Company's stockholders. In The Company shall cause the event that Proxy Statement to comply as to form and substance in all material respects with the Board of Directors withdraws or adversely modifies its recommendation applicable requirements of the issuances referred to in clause (i) aboveExchange Act, California Law and the Company will pay to the Purchasers (based on their pro rata percentage rules of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgNasdaq.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as As promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible prepare the preliminary Proxy Statement and, after consultation with and review by Merger Sub, file the preliminary Proxy Statement with the SEC the definitive proxy statement and acting through its Board of Directors, SEC. The Company shall make all reasonable efforts to (i) call a Special Meeting obtain and furnish the information required to be held at included by the earliest practicable date but SEC in no event later than 45 days the Proxy Statement and, after consultation with and review by Merger Sub, to respond promptly to any comments made by the SEC with respect to the Proxy Statement; and (ii) promptly upon the earlier of (xA) receiving notification that the SEC is not reviewing the preliminary proxy materials and Proxy Statement or (yB) the conclusion of any SEC review of the preliminary proxy materialsProxy Statement, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants cause a definitive Proxy Statement to be issued at mailed to the Second Closing as contemplated by this Agreement and (ii) include Company's stockholders and, if necessary, after the definitive Proxy Statement has been so mailed, promptly circulate amended or supplemental proxy materials and, if required in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveconnection therewith, resolicit proxies; provided, however, that no such amended or supplemental proxy materials will be mailed by the Company without consultation and review by Parent or Merger Sub. The Company will promptly notify Parent and Merger Sub of the receipt of comments of the SEC and of any request from the SEC for amendments or supplements to the preliminary Proxy Statement or definitive Proxy Statement or for additional information, and will promptly supply Parent and Merger Sub with copies of all written correspondence between the Company or Company Representatives, on the one hand, and the SEC or members of its staff, on the other hand, with respect to the preliminary Proxy Statement, the definitive Proxy Statement, the Merger or any of the other Transactions. Parent and Merger Sub will cooperate with the Company in connection with the preparation of the Proxy Statement, including furnishing to the Company any and all information regarding Parent and Merger Sub and their respective affiliates as may be required to be disclosed therein. The Proxy Statement shall contain the recommendation of the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In stockholders approve this Agreement and the event Transactions, provided that the Board of Directors withdraws or adversely modifies Board Committee may withdraw, modify or change its recommendation of this Agreement and the issuances referred to Transactions if it does so in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgaccordance with Section 6.02(b).

Proxy Statement. The Company shall use its reasonable best efforts Subject to prepare the accuracy of the representations and file with warranties of the SECSeller set forth in paragraph 31 of Exhibit B, as promptly as practicable after the information supplied by Buyer for inclusion in the Proxy Statement will not, on the date hereof but the Proxy Statement (or any amendment or supplement thereto) is first mailed to stockholders of the Seller, 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 the light of the circumstances under which they are made, not misleading, and will not, at the time of the Seller Stockholders Meeting, omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Seller Stockholders Meeting which shall have become false or misleading in any material respect. Notwithstanding the foregoing, Buyer makes no event later than representation or warranty with respect to any information supplied by or on behalf of the Seller for inclusion in the Proxy Statement. EXHIBIT D PROCEDURE FOR INDEMNIFICATION Subject to the limitations set forth in Article 4 of the Agreement, the party seeking to be indemnified (the “Indemnified Party”) will promptly give written notice hereunder to the party from which it seeks to be indemnified by (the “Indemnifying Party”) after obtaining notice of any claim as to which recovery may be sought against the Indemnifying Party. However, the right to indemnification hereunder will not be affected by any delay in or failure of an Indemnified Party to give any notice, unless, and then only to the extent that, the rights and remedies of the Indemnifying Party will have been prejudiced as a result of the failure to give, or delay in giving, notice. If the indemnity claim arises from the claim of a third-party, the Indemnified Party will permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim at the Indemnifying Party’s cost and expense. If the Indemnifying Party fails to notify an Indemnified Party of its election to defend any such claim or action by a third party with respect to which it has the option to defend within 30 days after the Initial ClosingIndemnifying Party receives notice of such claim or action, preliminary proxy materials then the Indemnifying Party will be deemed to have waived its right to defend such claim or action. If the Indemnifying Party assumes the defense of a third-party claim, the obligations of the Indemnifying Party as to such claim will include taking all steps necessary in the defense or settlement of such claim or litigation and holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party, or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such claim or litigation. The non-defending party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation. If the Indemnifying Party does not assume the defense of any such claim or litigation by a third-party, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate. The Indemnified Party may not settle such claim or litigation without the written consent of Indemnifying Party, which consent may not be unreasonably withheld. The Indemnifying Party will promptly pay or reimburse the Indemnified Party for all expenses in defending any claim, for the amount of any settlement, and for all damages incurred by the Indemnified Party in connection with any such claim or litigation. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may at the Indemnifying Party’s sole cost and expense, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such Proceeding, but the Indemnifying Party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). Seller and Buyer hereby consent to the non exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Proceeding or the xxxxxx alleged therein, and agree that process may be served on Seller with respect to such a meeting of claim anywhere in the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants world. With respect to be issued at the Second Closing as contemplated by any third-party claim subject to indemnification under this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, Exhibit D: (i) call a Special Meeting to be held both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person reasonably informed of the status of such third-party claim and any related Proceedings at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC all stages thereof where such Person is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materialsrepresented by its own counsel, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include the parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proxy statement proper and adequate defense of any third-party claim. With respect to any third-party claim subject to indemnification under this Exhibit D, the recommendation parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of its Board of Directors that holders of all confidential information and the Common Stock approve such issuances referred to in clause attorney-client and work-product privileges. In connection therewith, each party agrees that: (i) above; providedit will use its best efforts, however, that the Board in respect of Directors may withdraw any third-party claim in which it has assumed or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not participated in the best interests defense, to avoid production of confidential information (consistent with Applicable Law and rules of procedure), and (ii) all communications between any party hereto and counsel responsible for or participating in the Company's stockholders. In the event that the Board defense of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreementthird-party claim shall, to the holders of Common Stock for their approval without the prior written consent of Warburg.extent possible, be made so as to preserve any applicable attorney-client or work-product privilege. EXHIBIT E FORM OF SELLER OPINION LETTER Omitted EXHIBIT F FORM OF BUYER OPINION LETTER Omitted EXHIBIT G FORM OF NON-COMPETITION AGREEMENT Omitted

Proxy Statement. The Company shall use its reasonable best efforts to (i) As promptly as practicable following the execution and delivery of this Agreement, Parent shall, in accordance with this Section 7.1(a), prepare and file with the SEC, in preliminary form, a proxy statement in connection with the Transactions (as promptly as practicable after amended or supplemented from time to time, the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect “Proxy Statement”) to a meeting of be sent to the stockholders of Parent relating to the Special Meeting, for the purpose of, among other things: (A) providing Parent’s stockholders with notice of approving the opportunity to redeem shares of Parent Class A Stock (the “Parent Stockholder Redemption”); and (B) soliciting proxies from holders of Parent Class A Stock to vote at the Special Meeting in favor of: (1) the adoption of this Agreement and approval of the Transactions; (2) the issuance of shares of Preferred Parent Class A Stock upon conversion in connection with Section 2.6; (3) the amendment and restatement of the Notes Parent Organizational Documents substantially in the form of the Parent A&R Charter attached hereto as Exhibit C; (4) adoption of an equity incentive plan in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials Section 7.20; and (y5) any other proposals the conclusion of any SEC review of Parties deem necessary or desirable to consummate the preliminary proxy materialsTransactions (collectively, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes such changes as are mutually agreed by Parent and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders“Parent Stockholder Matters”). In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without Without the prior written consent of Warburgthe Company (such consent not to be unreasonably withheld, conditioned or delayed), the Parent Stockholder Matters shall be the only matters (other than procedural matters) which Parent shall propose to be acted on by the Parent’s stockholders at the Special Meeting. The Proxy Statement will comply as to form and substance with the applicable requirements of the Exchange Act and the rules and regulations thereunder. Parent shall file the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholders of record, as of the record date to be established by the Parent Board, as promptly as practicable following the earlier to occur of: (Y) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; and (Z) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC (such earlier date, the “Proxy Clearance Date”).

Proxy Statement. The (a) Acquisition and the Company shall cooperate in preparing and the Company shall, as soon as practicable, file with the SEC (after providing Acquisition with a reasonable opportunity to review and comment thereon) (i) preliminary proxy materials relating to the Company Meeting (as defined in Section 5.03) (together with any amendments thereof or supplements thereto, the "Proxy Statement"), (ii) the transaction statement on Schedule 13E-3 required by the Exchange Act (together with any amendments thereof or supplements thereto, the "Transaction Statement") and (iii) any other document required to be filed with the SEC or any other regulatory authority in connection with the transactions contemplated by this Agreement and shall use its reasonable best efforts to prepare respond to any comments of the SEC (after providing Acquisition with a reasonable opportunity to review and file with comment thereon) and to cause the SEC, Proxy Statement and the Transaction Statement to be mailed to the Company's stockholders as promptly as practicable after responding to all such comments to the date hereof but in no event later than 30 days after satisfaction of the Initial ClosingSEC staff. The Company and Acquisition shall promptly notify one another of the receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Proxy Statement or the Transaction Statement or for additional information and shall supply one another with copies of all correspondence between it and any of its representatives, preliminary proxy materials on the one hand, and the SEC on the other hand, with respect to a meeting of the stockholders for Proxy Statement, the purpose of approving Transaction Statement or the issuance of shares of Preferred Stock upon conversion of transactions contemplated hereby. If at any time prior to the Notes Company Meeting there shall occur any event that should be set forth in accordance with an amendment or supplement to the terms of Proxy Statement or the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterTransaction Statement, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials prepare and (yif appropriate) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants mail to its stockholders such an amendment or supplement; provided that no such amendment or supplement will be issued at the Second Closing as contemplated made by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay without providing Acquisition a reasonable opportunity to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgreview and comment thereon.

Proxy Statement. The Company shall use its reasonable best efforts Subject to prepare and file with the SECprior satisfaction of the condition set forth in Section 2.6(b)(i), if the Shareholder Approval is required under Nevada Law in order to consummate the Merger, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting consummation of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterOffer, the Company shall as promptly as possible prepare and file with the SEC a proxy statement in connection with the definitive Shareholder Meeting (together with any amendments and supplements thereto and any other required proxy materials) and as soon as practicable thereafter mail (or cause to be mailed) to the Company Common Stockholders such proxy statement and acting through its Board of Directorsall other proxy materials for the Shareholder Meeting (such proxy statement and other proxy materials collectively, (i) call a Special Meeting the “Proxy Statement”), and if necessary in order to be held at the earliest practicable date but in no event later than 45 days comply with applicable securities Laws, after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary Proxy Statement shall have been so mailed, promptly circulate amended, supplemental or supplemented proxy materials, and, if required in connection therewith, resolicit proxies. Subject to Section 1.2(b), the Proxy Statement shall contain the Company Board Recommendation. Each of Parent and Merger Sub shall promptly furnish to the Company in writing all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include inclusion in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders Proxy Statement. Each of the Company, based solely on facts the one hand, and Parent and Merger Sub, on the other hand, shall promptly correct or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not supplement any information provided by it for use in the best interests Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. The Company shall take all steps necessary to cause the Proxy Statement, as so corrected, to be filed with the SEC and disseminated to the Company Common Stockholders, in each case as and to the extent required by applicable securities Laws. The Company shall provide Parent, Merger Sub and their counsel reasonable opportunity to review and comment on the Proxy Statement prior to the filing thereof with the SEC and the Company shall give due consideration to the reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. The Company shall provide to Parent, Merger Sub and their counsel any comments the Company or its counsel may receive from the SEC or its staff with respect to the Proxy Statement promptly upon receipt thereof, and the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to participate in the formulation of any response to any such comments of the Company's stockholders. In the event that the Board of Directors withdraws SEC or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgstaff.

Proxy Statement. (a) The Company and Newco shall furnish --------------- to each other all information concerning such person or such person's business that is required for the Proxy Statement. The Company shall, as soon as practicable after the date hereof, prepare and file (after providing Newco with a reasonable opportunity to review and comment thereon) the Proxy Statement (including the Schedule 13E-3) with the SEC and shall use its reasonable best efforts to prepare respond to any comments of the SEC (after providing Newco with a reasonable opportunity to review and file with comment thereon) and to cause the SEC, Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after responding to all such comments to the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting satisfaction of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion staff of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveSEC; provided, however, that in no event shall the Board of Directors may withdraw or adversely modify their recommendation Company file the preliminary Proxy -------- ------- Statement with the SEC any later than January 31, 2001 (unless Newco shall have failed to cooperate with the preparation thereof as contemplated by this Section 5.10). The Company shall notify Newco promptly of the issuances referred to in clause (i) above if receipt of any comments from the Board SEC and of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view any request by the SEC for amendments or supplements to the stockholders Proxy Statement or for additional information and shall supply Newco with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement or the Transactions. The Company will cause the Proxy Statement to comply in all material respects with the applicable provisions of the CompanyExchange Act and the rules and regulations thereunder applicable to the Proxy Statement and the solicitation of proxies for the Stockholder Meeting (including any requirement to amend or supplement the Proxy Statement). Newco shall cooperate with the Company in the preparation of the Proxy Statement, based solely on facts and without limiting the generality of the foregoing, the Company and Newco shall promptly furnish to the other such information relating to it and its affiliates and the Transactions and such further and supplemental information as may be reasonably requested by the other party and shall promptly notify the other party of any change in such information. If at any time prior to the Stockholder Meeting there shall occur any event that should be set forth in an amendment or conditions arising after supplement to the date hereofProxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement; provided, however, that no such amendment or -------- ------- supplement to the issuances referred -39- Proxy Statement will be made by the Company without providing Newco the reasonable opportunity to review and comment thereon and without the approval of Newco, which approval shall not be unreasonably withheld. To the extent practicable, the Company and its counsel shall (and the Company shall cause the Special Committee and its counsel to) permit Newco and its counsel to participate in clause (i) above are not all communications with the SEC and its staff, including all meetings and telephone conferences, relating to the Proxy Statement, this Agreement or the Transactions; provided, however, that in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) abovesuch -------- ------- participation by Newco is not practicable, the Company will pay to (or the Purchasers (based on their pro rata percentage Special Committee) shall promptly inform Newco of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) content of all such communications and the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgparticipants involved therein.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as (a) As promptly as practicable after the date hereof but of this Agreement, the Parties shall prepare, and Parent shall cause to be filed with the SEC, the Proxy Statement. Parent covenants and agrees that the Proxy Statement will not, at the time the Proxy Statement or any amendment or supplement thereto is filed with the SEC or is first mailed to Parent’s stockholders, 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 made therein, in light of the circumstances under which they were made, not misleading. The Company covenants and agrees that the information provided by or on behalf of the Company to Parent for inclusion in the Proxy Statement (including the audited financial statements and/or the interim financial statements as included in the Company Financial Statements, as the case may be) will not, when delivered by the Company, 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 such information not misleading. Notwithstanding the foregoing, Parent makes no event later than 30 days after the Initial Closingcovenant, preliminary proxy materials representation or warranty with respect to a statements made in the Proxy Statement (and the letter to stockholders, notice of meeting and form of proxy included therewith), if any, based on information provided by or on behalf of the stockholders Company or any of its Representatives for inclusion therein, and the purpose Company makes no covenant, representation or warranty with respect to statements made in the Proxy Statement (and the letter to stockholders, notice of approving meeting and form of proxy included therewith), if any, other than with respect to the issuance of shares of Preferred Stock upon conversion information provided by or on behalf of the Notes in accordance Company or any of its Representatives for inclusion therein. The Company and its legal counsel shall be given reasonable opportunity to review and comment on the Proxy Statement, including all amendments and supplements thereto, prior to the filing thereof with the terms SEC, and on the response to any comments of the Notes SEC on the Proxy Statement, prior to the filing or submission thereof with or to the SEC. Parent shall use commercially reasonable efforts to cause the Proxy Statement to comply with the applicable rules and regulations promulgated by the SEC and to respond promptly to any comments of the SEC or its staff. Parent shall use commercially reasonable efforts to cause the Proxy Statement to be mailed to Parent’s stockholders as promptly as reasonably practicable after the resolution of SEC staff comments and the issuance filing of the Warrants Definitive Proxy Statement. Each Party shall promptly furnish to the other Party all information concerning such Party and such Party’s Affiliates and such Party’s stockholders that may be issued at the Second Closing as required or reasonably requested in connection with any action contemplated by this AgreementSection 5.6. ThereafterIf Parent, Transitory Subsidiary or the Company become aware of any event or information that, pursuant to the Exchange Act, should be disclosed in an amendment or supplement to the Proxy Statement, then such Party, as the case may be, shall as promptly as possible file inform the other Parties thereof and shall cooperate with such other Parties in filing such amendment or supplement with the SEC the definitive proxy statement and acting through its Board of Directorsand, (i) call a Special Meeting if appropriate, in mailing such amendment or supplement to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's Parent’s stockholders. In the event that the Board of Directors withdraws No filing of, or adversely modifies its recommendation of the issuances referred to in clause (i) aboveamendment or supplement to, the Company Proxy Statement will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) be made by Parent, in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereundereach case, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgthe Company, which shall not be unreasonably withheld, conditioned or delayed. The Company and Parent shall each use commercially reasonable efforts to cause the Proxy Statement to comply with applicable federal and state securities laws requirements.

Proxy Statement. As promptly as reasonably practicable following the execution of this Agreement, with the timely cooperation and assistance from Parent, the Company shall prepare and file with the SEC the Company Proxy Statement in preliminary form; provided that the Company shall provide Parent and its counsel a reasonable opportunity to review the preliminary Company Proxy Statement in advance of the filing thereof with the SEC and consider in good faith any comments reasonably proposed by Parent and its counsel (it being understood that Parent and its counsel shall provide any comments thereon as promptly as practicable); provided, further, that the foregoing shall not apply with respect to any disclosures or statements related to any Acquisition Proposal, Superior Proposal or Adverse Recommendation Change. The Company shall use its reasonable best efforts to prepare and file with cause the SEC, Company Proxy Statement to be mailed to the Company Stockholders as promptly as practicable after following the date hereof but in receipt of confirmation from the SEC that it will not comment on, or that it has no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafteradditional comments on, the Company Proxy Statement. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent and Merger Sub as may be reasonably requested by the Company in connection with the preparation and filing with the SEC of the Company Proxy Statement. Each of the Company, Parent and Merger Sub shall promptly as possible correct any information provided by it, or any of its Representatives, for use in the Proxy Statement if and to the extent that such information contains any untrue statement of material fact or omits to state 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 were made, not misleading, and the Company shall promptly file with the SEC an appropriate amendment or supplement describing such information or correction and, to the definitive proxy statement extent required by Applicable Law, disseminate such amendment or supplement to the Company Stockholders. The Company shall (a) as promptly as reasonably practicable after receipt thereof, provide Parent and acting through its Board counsel with copies of Directorsany written comments, and advise Parent and its counsel of any oral comments, with respect to the Company Proxy Statement (or any amendment or supplement thereto) received from the SEC or its staff, (ib) call provide Parent and its counsel a Special Meeting reasonable opportunity to be held at review the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials Company’s proposed response to such comments and (yc) the conclusion of consider in good faith any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes comments reasonably proposed by Parent and the issuance of the Warrants to be issued at the Second Closing its counsel (it being understood that Parent and its counsel shall provide any comments thereon as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) abovepromptly as practicable); provided, however, that the Board of Directors may withdraw foregoing shall not apply with respect to any disclosures or adversely modify their recommendation of the issuances referred statements related to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Companyany Acquisition Proposal, based solely on facts Superior Proposal or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgAdverse Recommendation Change.

Proxy Statement. The Company shall use its reasonable best efforts to (i) As promptly as practicable following the execution and delivery of this Agreement, Parent shall, in accordance with this Section 7.1(a), prepare and file with the SEC, in preliminary form, a proxy statement in connection with the Transactions (as promptly as practicable after amended or supplemented from time to time, the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect “Proxy Statement”) to a meeting of be sent to the stockholders of Parent relating to the Special Meeting, for the purpose of, among other things: (A) providing Parent’s stockholders with notice of approving the opportunity to redeem shares of Parent Class A Stock (the “Parent Stockholder Redemption”); and (B) soliciting proxies from holders of Parent Class A Stock to vote at the Special Meeting in favor of: (1) the adoption of this Agreement and approval of the Transactions; (2) the issuance of shares of Preferred Parent Class A Stock upon conversion in connection with Section 2.6; (3) the amendment and restatement of the Notes Parent Organizational Documents in accordance with the terms form of the Notes Parent A&R Charter attached hereto as Exhibit A; and (4) any other proposals the issuance of Parties deem necessary or desirable to consummate the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterTransactions (collectively, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders“Parent Stockholder Matters”). In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without Without the prior written consent of Warburgthe Seller and the Company (each such consent not to be unreasonably withheld, conditioned or delayed), the Parent Stockholder Matters shall be the only matters (other than procedural matters) which Parent shall propose to be acted on by the Parent’s stockholders at the Special Meeting. The Proxy Statement will comply as to form and substance with the applicable requirements of the Exchange Act and the rules and regulations thereunder. Parent shall file the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholders of record, as of the record date to be established by the board of directors of Parent, as promptly as practicable following the earlier to occur of: (Y) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; and (Z) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC (such earlier date, the “Proxy Clearance Date”).

Proxy Statement. (a) As promptly as reasonably practicable (and in any event, using commercially reasonable efforts to do so within 20 business days) following the date of this Agreement, the Company shall prepare and file with the SEC, in preliminary form, a proxy statement relating to a meeting of the Company Stockholders (the “Company Stockholder Meeting”) (as amended or supplemented from time to time, the “Proxy Statement”) for the purpose of obtaining the Company Required Vote. Subject to Section 5.1(b), the Board of Directors of the Company shall include the Company Board Recommendation in the Proxy Statement. Each of the Company and Parent shall furnish all information concerning itself and its Affiliates that is reasonably requested by the Company to be included in the Proxy Statement and Parent shall otherwise reasonably assist and cooperate with the Company in the preparation of the Proxy Statement and the resolution of any comments thereto received from the SEC. The Company will cause the Proxy Statement to comply in all material respects with the applicable requirements of the Exchange Act and the NRS and the rules and regulations of the SEC and the NYSE. The Company covenants that, on the date of filing, the date of mailing to the Company Stockholders and at the time of the Company Stockholder Meeting, the Proxy Statement (excluding any information supplied by Parent, Merger Sub or their Affiliates or Representatives or any Equity Financing Party or Debt Financing Source, in each case, specifically for inclusion or incorporation by reference in the Proxy Statement) 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 false or misleading. The Company shall use its reasonable best efforts to prepare and file with the SEC, respond as promptly as reasonably practicable after to any (written or oral) comments of the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials SEC with respect to a meeting of the stockholders for Proxy Statement and to have the purpose of approving Proxy Statement cleared by the issuance of shares of Preferred Stock upon conversion of SEC as promptly as reasonably practicable and to file the Notes in accordance Proxy Statement with the terms SEC in definitive form promptly thereafter. The Company shall promptly notify Parent upon the receipt of any (written or oral) comments from the Notes SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide Parent with a copy of all written correspondence between the Company or any Company Representatives, on the one hand, and the issuance SEC or its staff, on the other hand (and a summary of any oral conversations) with respect to the Warrants to be issued at Proxy Statement or the Second Closing Transactions. Until such time as contemplated by this Agreement. Thereafterthere has been a Company Adverse Change Recommendation, the Company shall as promptly as possible file give Parent and its counsel a reasonable opportunity to review and comment on the Proxy Statement, including all amendments and supplements thereto, prior to filing such documents with the SEC and disseminating such documents to the definitive proxy statement Company Stockholders and acting through its Board of Directorsreasonable opportunity to review and comment on all responses to requests for additional information and shall give due consideration, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) faith, to including any comments on each such document or response that from a financial point of view are reasonably proposed by Parent. If, at any time prior to the stockholders of Company Stockholders Meeting, any information relating to the Company, based solely on facts Parent or conditions arising after any of their respective Affiliates, officers, directors or other Representatives should be discovered by the date hereofCompany that should be set forth in an amendment or supplement to the Proxy Statement, so that the issuances referred 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 clause (i) above are not order to make the statements therein, in the best interests light of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) abovecircumstances under which they are made, not misleading, the Party that discovers such information shall promptly notify the other Parties, and the Company will pay shall promptly file an appropriate amendment or supplement to the Purchasers (based on their pro rata percentage of Proxy Statement describing such information with the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this AgreementSEC and, to the holders of Common Stock for their approval without extent required by applicable Legal Requirements, cause such amendment or supplement to be promptly disseminated to the prior written consent of WarburgCompany Stockholders.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as (a) As promptly as practicable after the date hereof of this Agreement, but in no event later than 30 days the earlier of fourteenth (14th) Business Day after the Initial Closingdate hereof or prior to the filing or furnishing of any proxy statement in connection with any other Acquisition Transaction, preliminary proxy materials the Company shall prepare the Proxy Statement and cause all required filings to be filed with respect the ISA and furnished to a meeting the SEC. The Company shall use all reasonable efforts (i) to cause the Proxy Statement to comply with all applicable Legal Requirements and (ii) to respond promptly to any comments of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion SEC or its staff and any comments of the Notes ISA or its staff. Prior to filing the Proxy Statement (or any amendment or modification thereto) with the ISA or the SEC, the Company (x) shall provide Parent with a reasonable opportunity to review and comment on any drafts of the Proxy Statement and related correspondence and filings, (y) shall consider in good faith to include in such drafts, correspondence and filings all comments reasonably proposed by Parent, and (z) to the extent reasonably practicable and not prohibited under applicable Law, the Company and its outside legal counsel shall permit Parent and its outside counsel to participate in all communications, if any, with the ISA, the SEC or NASDAQ, or their respective staff, as applicable (including all meetings and telephone conferences) relating to this Agreement or any of the transactions contemplated hereby. If any event relating to any of the Acquired Companies occurs, or if the Company becomes aware of any information, that should be disclosed in an amendment or supplement to the Proxy Statement, then the Company shall promptly inform Parent thereof and the Company shall, in accordance with the terms procedures set forth in this Section ‎6.2 prepare such amendment or supplement as soon thereafter as is reasonably practicable and to the extent required by applicable Law, cause such amendment or supplement to be promptly distributed to the shareholders of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this AgreementCompany. Thereafter, the The Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement Proxy Statement any information with respect to Parent or its Affiliates, unless the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred form and content thereof shall have been consented to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither writing by Parent prior to nor at the Special Meeting shall the Company put forth such inclusion and Parent agrees to provide any matter, other than those matters relating such information required to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgbe so included under applicable Law.

Proxy Statement. The Company (a) As promptly as practicable after the execution of this Agreement and Future Health’s receipt of the Audited Financial Statements and Reviewed Financial Statements, subject to the terms of this Section 7.01, Future Health (with the assistance and cooperation of Seller as reasonably requested by Future Health) shall use its reasonable best efforts to prepare and file with the SECSEC a proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Future Health relating to the meeting of Future Health’s stockholders (including any adjournment or postponement thereof, the “Future Health Stockholders’ Meeting”) to be held to consider (i) approval and adoption of this Agreement and the Transactions, (ii) approval of the issuance of Future Health Common Stock as contemplated by this Agreement, the Subscription Agreement and the Forward Purchase Agreement, (ii) the second amended and restated Future Health Certificate of Incorporation and (iii) any other proposals the parties deem necessary to effectuate the Transactions (collectively, the “Future Health Proposals”). If determined by the parties appropriate, Future Health may prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Future Health Common Stock to be issued to Seller pursuant to this Agreement. Future Health on the one hand, and Seller on the other hand, shall each pay one half of all registration and filing fees due in connection with the Registration Statement, if applicable. Seller shall furnish all information concerning Seller or the Company as Future Health may reasonably request in connection with such actions and the preparation of the Proxy Statement and Registration Statement, if applicable. Future Health and Seller each shall use their reasonable best efforts to (i) cause the Registration Statement or the Proxy Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement or the Proxy Statement, (iii) if applicable, cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after and (iv) if applicable, keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for Registration Statement or the purpose filing of approving the definitive Proxy Statement, Future Health shall use commercially reasonable efforts to take any action required under any applicable federal or state securities laws in connection with the issuance of shares of Preferred Stock upon conversion of the Notes Future Health Common Stock, in accordance with the terms of the Notes and the issuance of the Warrants each case to be issued at the Second Closing as contemplated by or issuable to Seller pursuant to this Agreement. Thereafter, the Company shall as As promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review finalization of the preliminary proxy materialsProxy Statement, for Future Health shall mail the sole purpose of voting upon Proxy Statement to its stockholders. As promptly as practicable following the approval clearance of the issuance of shares of Preferred Stock upon conversion of Proxy Statement by the Notes in accordance with SEC, Future Health shall mail the terms of the Notes and the issuance of the Warrants Proxy Statement to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.

Proxy Statement. (a) As soon as practicable following the date of this Agreement, the Company shall prepare and no later than the tenth (10th) Business Day following the public announcement of the execution and delivery of this Agreement, the Company shall file with the SEC the Proxy Statement for use in connection with the solicitation of proxies from shareholders of the Company in connection with the Merger and the Company Shareholders’ Meeting. The Company and Parent, as the case may be, shall furnish all information concerning the Company or Parent as the other party hereto may reasonably request in connection with the preparation and filing with the SEC of the Proxy Statement. Subject to all applicable Laws, the Company shall use its reasonable best efforts to prepare and file with cause the SEC, Proxy Statement to be disseminated to shareholders of the Company as promptly as practicable after following the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance filing thereof with the terms of SEC. Notwithstanding anything to the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by contrary set forth in this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement Proxy Statement, and acting through its Board of Directors, (i) call a Special Meeting to be held at shall cause the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review mailing of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view definitive Proxy Statement to the stockholders shareholders of the Company, based solely on facts or conditions arising after prior to the date hereof, that second (2nd) Business Day immediately following the issuances referred to in clause later of (i) above are receipt and resolution of SEC comments thereon, or (ii) the expiration of the 10-day waiting period provided in Rule 14a-6(a) promulgated under the Exchange Act. No filing of, or amendment or supplement to, or correspondence with the SEC or its staff with respect to the Proxy Statement shall be made by the Company without providing Parent a reasonable opportunity to review and comment thereon, including in such filings, amendments, supplements and correspondence all comments reasonably proposed by Parent and receiving the approval of Parent (which approval shall not be unreasonably withheld or delayed). The Company shall advise Parent, promptly after it receives notice thereof, of any request by the SEC or its staff for an amendment or revisions to the Proxy Statement, or comments thereon and responses thereto, or requests by the SEC or its staff for additional information in connection therewith, and shall provide Parent with copies of all correspondence between the best interests Company or any of its advisors or representatives, on the one hand, and the SEC, or its staff or any other government officials, on the other hand, with respect to the Proxy Statement or other filing with the SEC. If the Company or its outside legal counsel intends to initiate a telephone conference or meet with the SEC and its staff related to the Proxy Statement, this Agreement or the Merger, the Company shall so inform the Parent and solicit input on the items planned to be discussed during such telephone conference or meeting. If at any time prior to the Company Shareholders’ Meeting, any information relating to the Company or Parent, or any of their respective directors, officers or Affiliates, 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 does not include any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Proxy Statement describing such information shall be promptly prepared and filed with the SEC and, to the extent required by applicable Law, disseminated to the shareholders of the Company's stockholders. In The Company shall cause the event that Proxy Statement to comply as to form and substance in all material respects with the Board of Directors withdraws or adversely modifies its recommendation applicable requirements of the issuances referred to in clause (i) aboveExchange Act, California Law and the Company will pay to the Purchasers (based on their pro rata percentage rules of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgNasdaq.

Proxy Statement. The Subject to Section 5.08 hereof, after the Acceptance Date, if approval of the Company’s stockholders is required by applicable law to consummate the Merger, as promptly as reasonably practical after the Acceptance Date, the Company shall prepare and cause to be filed the Proxy Statement with the SEC under the Exchange Act and shall use its reasonable best efforts to prepare have the Proxy Statement cleared by the SEC promptly. The Company, Parent and file Purchaser shall cooperate and consult with each other in preparation of the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and Purchaser will furnish to the Company the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement. The Company shall include, except to the extent provided in Section 5.08, the text of this Agreement and the recommendation of the board of directors of the Company that the Company’s stockholders approve and adopt this Agreement. Each of the Company, Parent and Purchaser agrees to use its reasonable best efforts, after consultation with the SECother Parties, as to respond promptly as practicable after to all comments of and requests by the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials SEC with respect to a meeting of the stockholders for Proxy Statement and to cause the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes Proxy Statement and the issuance of the Warrants all required amendments and supplements thereto to be issued mailed to the holders of Shares entitled to vote at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Stockholders’ Meeting to be held at the earliest practicable date but in no event later than 45 days time after the earlier of (x) receiving notification that Proxy Statement has been cleared by the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of SEC. If at any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view time prior to the stockholders Effective Time any event or circumstance relating to the Company or Parent or any of the Company’s or Parent’s Subsidiaries, based solely on facts or conditions arising after their respective officers or directors, should be discovered by the date hereofCompany or Parent, that respectively, which, pursuant to the issuances referred Exchange Act, should be set forth in an amendment or a supplement to in clause (i) above are not the Proxy Statement, such party shall promptly inform the others. Each of Parent, Purchaser and the Company agree to correct any information provided by it for use in the best interests Proxy Statement which shall have become false or misleading. All documents that each of the Company's stockholders. In Company and Parent is responsible for filing with the event that SEC in connection with the Board of Directors withdraws or adversely modifies its recommendation Merger will comply as to form in all material respects with the provisions of the issuances referred to in clause (i) above, Exchange Act and the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgrules and regulations promulgated thereunder.

Proxy Statement. (a) The Parent shall within 45 days of the later of the (i) Execution Date (ii) delivery of Company shall use its reasonable best efforts to Audited Financial Statements, and (iii) execution of the Divestiture Agreement, prepare and file with the SEC in connection with the transactions contemplated hereby, a preliminary proxy statement of the Parent relating to the meeting of the stockholders of the Parent to be held for the purposes of obtaining the Parent Stockholder Approval (including any postponement, adjournment or recess thereof, the “Parent Stockholders Meeting”) therein, and any amendments or supplements thereto necessary to complete the review of such proxy statement by the SEC (the “Preliminary Proxy Statement”). The Parties shall cooperate in preparing and filing with SEC the Preliminary Proxy Statement (or such other filings as may be necessary under applicable Law). The Parent shall disseminate a definitive proxy statement (the “Definitive Proxy Statement”) to the holders of Parent Common Stock as promptly as reasonably practicable following completion of the review of the Preliminary Proxy Statement by the SEC. Newtek shall furnish all information concerning Newtek or the Company as may be reasonably requested by the Parent or required by applicable Law in connection with the preparation and filing of the Preliminary Proxy Statement and the Definitive Proxy Statement and any necessary amendments or supplements thereto (or such other filings as may be necessary under applicable Law). The Parent shall, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closingreceipt thereof, preliminary proxy materials provide Newtek with copies of any written comments and advise Newtek of any oral comments with respect to a meeting the Preliminary Proxy Statement received by the Parent from the SEC, including any request from the SEC for amendments or supplements thereto (or such other filings as may be necessary under applicable Laws), and shall promptly provide Newtek with copies of all other material or substantive correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Notwithstanding the foregoing, prior to filing the Preliminary Proxy Statement or responding to any comments of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance SEC with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafterrespect thereto, the Company Parent shall as promptly as possible file with provide Newtek and their counsel a reasonable opportunity to review such document or response (including the SEC the definitive proxy statement proposed final version of such document or response) and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines consider in good faith the comments of Newtek in connection with any such document or response. The Parent and its respective Representatives shall not agree to participate in any material or substantive meeting or conference (after consultation including by telephone) with its financial advisors and legal counsel) that from a financial point of view to the stockholders SEC, or any member of the Companystaff thereof, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests respect of the Company's stockholders. In the event that the Board of Directors withdraws Preliminary Proxy Statement or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither Definitive Proxy Statement prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreementconsulting with Newtek and, to the holders of Common Stock for their approval without extent permitted by the prior written consent of WarburgSEC, allow Newtek or its Representatives to participate.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as (a) As promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible prepare a proxy statement (together with any amendments thereof or supplements thereto, the “Proxy Statement”) and, after consultation with, and approval by, Parent (which shall not be unreasonably withheld or delayed), file the preliminary Proxy Statement with the SEC the definitive proxy statement and acting through its Board of Directors, SEC. The Company shall use reasonable best efforts to (i) call a Special Meeting obtain and furnish the information required to be held at included by the earliest practicable date but SEC in no event later than 45 days the Proxy Statement, and respond, after consultation with Parent, promptly to any comments made by the SEC with respect to the Proxy Statement, and (ii) promptly upon the earlier of (xA) receiving notification that the SEC is not reviewing the preliminary proxy materials Proxy Statement and (yB) the conclusion of any SEC review of the preliminary proxy materialsProxy Statement, for cause the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants definitive Proxy Statement to be issued at mailed to the Second Closing as contemplated by this Agreement and (ii) include Company’s shareholders and, if necessary, after the definitive Proxy Statement shall have been so mailed, promptly circulate amended or supplemental proxy materials and, if required in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveconnection therewith, resolicit proxies; provided, however, that no such amended or supplemental proxy materials will be filed with the Board of Directors may withdraw SEC or adversely modify their recommendation of mailed by the issuances referred to in clause (i) above if Company without affording Parent a reasonable opportunity for consultation and review, and the Board of Directors determines Company shall consider in good faith (after consultation with its financial advisors any comments on such materials reasonably proposed by Parent. The Company will promptly notify Parent of the receipt of comments from the SEC and legal counsel) that of any request from a financial point of view the SEC for amendments or supplements to the stockholders preliminary Proxy Statement or definitive Proxy Statement or for additional information, and will promptly supply Parent with copies of all written correspondence between the Company or its Representatives, on the one hand, and the SEC or members of its staff, on the other hand, with respect to the preliminary Proxy Statement, the definitive Proxy Statement, the Mergers or any of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement. Prior to responding to any comments of the SEC or members of its staff, the Company shall provide Parent with a reasonable opportunity to consult and review such response and the Company shall consider in good faith any comments on such response reasonably proposed by Parent. Parent, Merger Sub I and Merger Sub II will cooperate with the Company in connection with the preparation of the Proxy Statement, including promptly furnishing to the holders of Common Stock for Company any and all information regarding Parent, Merger Sub I and Merger Sub II and their approval without respective affiliates as may be required to be disclosed therein. The Proxy Statement shall contain the prior written consent of WarburgCompany Recommendation, except to the extent that the Company Board shall have effected an Adverse Recommendation Change, as permitted by and determined in accordance with Section 5.6.

Proxy Statement. Promptly following the date of this Agreement (but in no event prior to the Business Day immediately following the Cut-Off Date), the Company will prepare (with Parent’s reasonable assistance) and file with the SEC a preliminary proxy statement (as amended or supplemented, the “Proxy Statement”) relating to the Company Stockholder Meeting. The Company may not file the Proxy Statement with the SEC without first providing Parent and its counsel a reasonable opportunity to review and comment thereon, and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent or its counsel and the Company agrees that all information relating to Parent and its Subsidiaries included in the Proxy Statement shall be in form and content reasonably satisfactory to Parent. The Company shall use its reasonable best efforts to prepare and file with ensure that the SEC, as promptly as practicable after Proxy Statement (i) will not on the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect it is first mailed to a meeting stockholders of the stockholders for Company and at the purpose of approving the issuance of shares of Preferred Stock upon conversion time of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file Stockholders Meeting or filed with the SEC the definitive proxy (as applicable) contain any untrue statement and acting through its Board of Directors, (i) call a Special Meeting material fact or omit to state any material fact required to be held at stated therein or necessary in order to make the earliest practicable date but statements therein, in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review light of the preliminary proxy materialscircumstances under which they are made, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement not misleading and (ii) include will comply as to form in all material respects with the applicable requirements of the Exchange Act. Notwithstanding the foregoing, (A) the Company assumes no responsibility with respect to information supplied in writing by or on behalf of Parent or Merger Sub or their affiliates for inclusion or incorporation by reference in the proxy statement Proxy Statement (which Parent shall ensure satisfies the recommendation requirements of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause clauses (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause and (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%ii) of the aggregate principal amount preceding sentence) and (B) Parent, Merger Sub and their respective Affiliates assume no responsibility with respect to information supplied in writing by or on behalf of the Notes issued hereunder, payable within two (2) business days of such withdrawal Company or modification. Neither prior to nor at its affiliates for inclusion or incorporation by reference in the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgProxy Statement.

Proxy Statement. The (a) As soon as reasonably practicable after the date of this Agreement (and provided that the H parties shall have provided the information set forth in the fourth sentence of this Section 4.2(a)), the Company shall use its reasonable best efforts to will prepare and file with the SECSEC a proxy statement relating to the Company Stockholders’ Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”). As soon as promptly as reasonably practicable after the date hereof but in no event later than 30 days after of this Agreement, the Initial Closing, preliminary proxy materials with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance Company and H shall jointly prepare and file with the terms of SEC a Rule 13E-3 Transaction Statement on Schedule 13E-3 (together with any amendments thereof or supplements thereto, the Notes and “Schedule 13E-3”) relating to the issuance of the Warrants to be issued at the Second Closing as transactions contemplated by this Agreement. Thereafter, The Company will use its reasonable efforts to respond to any comments of the Company shall SEC and to cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) abovepracticable; provided, however, that prior to the Board of Directors may withdraw or adversely modify their recommendation filing and mailing of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) aboveProxy Statement, the Company will pay consult with the H Parties and their counsel with respect to the Purchasers (based on their pro rata percentage Proxy Statement and shall afford the H Parties reasonable opportunity to review and comment thereon and include all comments reasonably proposed by H. The H Parties will provide the Company with any information for inclusion in the Proxy Statement which may be required under applicable law and which is reasonably requested by the Company. The Company will promptly notify the H Parties of the aggregate Purchase Pricereceipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Proxy Statement or the Schedule 13E-3 or for additional information, and will supply the H Parties with copies of all correspondence (and ability to participate in all communications) between the Company and any of its representatives, on the one hand, and the SEC or members of its staff, on the other hand, with respect to the Proxy Statement, the Schedule 13E-3 or the transactions contemplated hereby. If at any time prior to the Company Stockholders’ Meeting any event should occur which is required by applicable law to be set forth in immediately available funds an amount amendment of, or a supplement to, the Proxy Statement or the Schedule 13E-3, the Company will as promptly as reasonably practicable prepare (in cash as liquidated damages equal to five percent (5%) the case of the aggregate principal amount Schedule 13E-3, the Company and H will jointly prepare) and, if appropriate, mail to stockholders such amendment or supplement; provided, however, that prior to such mailing of the Notes issued hereunderProxy Statement or any amendment thereto, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating will consult with the H Parties and their counsel with respect to transactions expressly contemplated such amendment or supplement and shall afford the H Parties reasonable opportunity to review and comment thereon and include all comments reasonably proposed by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.H.

Proxy Statement. The (i) As promptly as reasonably practicable following the execution and delivery of this Agreement, (i) SPAC (with the assistance and cooperation of the Company as reasonably requested by SPAC) shall use reasonable best efforts to prepare, file with the SEC, in preliminary form, a proxy statement in connection with the Transactions (the “Proxy Statement”) to be sent to the stockholders of SPAC in advance of the Special Meeting with respect to, among other things: (A) providing SPAC’s stockholders with the opportunity to redeem shares of SPAC Class A Common Stock by tendering such shares for redemption not later than two Business Days prior to the originally scheduled date of the Special Meeting (the “SPAC Stockholder Redemption”); and (B) soliciting proxies from holders of SPAC Class A Common Stock to vote at the Special Meeting, as adjourned or postponed, in favor of the SPAC Stockholder Matters, and each Party will reasonably cooperate (including causing each of its Subsidiaries and Representatives to reasonably cooperate) with the other Parties, and provide all information regarding such Party, its Affiliates and its business that is necessary for the preparation and filing of the Proxy Statement. Without the prior written consent of the Company, the SPAC Stockholder Matters shall be the only matters (other than procedural matters) which SPAC shall propose to be acted on by the SPAC’s stockholders at the Special Meeting. Each of SPAC and the Company shall use its reasonable best efforts to prepare and file cause the Proxy Statement to comply with the rules and regulations promulgated by the SEC. SPAC shall use reasonable best efforts to (I) file the Proxy Statement with the SEC and (II) cause the Proxy Statement to be mailed to its stockholders of record, as of the record date to be established by the SPAC Board in accordance with Section 9.02, as promptly as practicable after the date hereof (but in no event later less than 30 days after five Business Days except as otherwise required by applicable Law) following the Initial Closingearlier to occur of: (x) if the preliminary Proxy Statement is not reviewed by the SEC, preliminary proxy materials with respect to a meeting the expiration of the stockholders for waiting period in Rule 14a-6(a) under the purpose Exchange Act; or (y) if the preliminary Proxy Statement is reviewed by the SEC, receipt of approving the issuance of shares of Preferred Stock upon conversion oral or written notification of the Notes in accordance completion of the review by the SEC (such earlier date, the “Proxy Clearance Date”). In connection with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. ThereafterProxy Statement, the Company shall as promptly as possible SPAC will file with the SEC financial and other information about the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as transactions contemplated by this Agreement in accordance with applicable Law and (ii) include applicable proxy solicitation and registration statement rules set forth in the proxy statement SPAC’s Organizational Documents, the recommendation of its Board of Directors that holders Securities Act, the DGCL and the rules and regulations of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors SEC and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgNasdaq.

Proxy Statement. The Company shall use its reasonable best efforts to (a) As promptly as practicable after the execution of this Agreement, Osboxx xxxll prepare and file with the Securities and Exchange Commission (the "SEC") the preliminary Proxy Statement with respect to the actions to be taken at the Osboxx Xxxckholders Meeting, as which shall be in form and substance reasonably satisfactory to Mergeco based on Mergeco's review of the preliminary Proxy Statement prior to it being filed with the SEC. Mergeco and Osboxx xxxll cooperate with each other in the preparation of the Proxy Statement, and Osboxx xxxll notify Mergeco of the receipt of any comments of the SEC with respect to the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Mergeco promptly copies of all correspondence between Osboxx xx any representative of Osboxx xxx the SEC. As promptly as practicable after comments are received from the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials SEC with respect to a meeting the preliminary Proxy Statement, Osboxx xxxll use its commercially reasonable efforts to respond to the comments of the stockholders SEC, which responses shall be in form and substance reasonably satisfactory to Mergeco based on Mergeco's review of Osboxx'x xxxposed responses to the SEC. Osboxx xxxll give Mergeco and its counsel the opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for the purpose of approving the issuance of shares of Preferred Stock upon conversion additional information and replies to comments of the Notes SEC prior to their being filed with or sent to the SEC. Mergeco shall provide Osboxx xxxh such information as may be required to be included in accordance with the terms Proxy Statement or as may be reasonably required to respond to any comment of the Notes SEC. After all the comments received from the SEC have been cleared by the SEC staff and the issuance of the Warrants all information required to be issued at contained in the Second Closing as contemplated Proxy Statement, to the reasonable satisfaction of Mergeco, has been included therein by this Agreement. ThereafterOsboxx, the Company shall as promptly as possible Xxxxxx xxxll file with the SEC the definitive proxy statement Proxy Statement and acting through Osboxx xxxll use its Board of Directors, (i) call a Special Meeting commercially reasonable efforts to have the Proxy Statement cleared by the SEC as soon thereafter as practicable. Osboxx xxxll cause the Proxy Statement to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants mailed to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburg.record as

Proxy Statement. The (a) Following the consummation of the Offer and if required by the Securities Exchange Act because of action by the Company's stockholders necessary in order to consummate the Merger, the Company shall use its reasonable best efforts to prepare and file with the SEC and, when cleared by the SEC, shall mail to stockholders, a proxy statement in connection with a meeting of the Company's stockholders to vote upon the adoption of this Agreement and the Merger and the transactions contemplated hereby and thereby (the "COMPANY PROPOSALS"), or an information statement, as appropriate, satisfying all requirements of the Securities Exchange Act (such proxy or information statement in the form mailed by the Company to its stockholders, together with any and all amendments or supplements thereto, is herein referred to as the "PROXY STATEMENT"). Parent will furnish the Company with such information concerning Parent and its subsidiaries as is necessary in order to cause the Proxy Statement, insofar as it relates to Parent and its subsidiaries, to comply with applicable Law. Parent agrees promptly to advise the Company if, at any time prior to the meeting of stockholders of the Company referenced herein, any Parent Information (as defined) in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide the Company with the information needed to correct such inaccuracy or omission. Parent will furnish the Company with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to Parent and its subsidiaries, to comply with applicable Law after the mailing thereof to the stockholders of the Company. The Company and Parent agree to cooperate in making any preliminary filings of the Proxy Statement with the SEC, as promptly as practicable after practicable, pursuant to Rule 14a-6 under the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to Securities Exchange Act. The Company shall provide Parent for its review a meeting copy of the stockholders Proxy Statement prior to each filing thereof, with reasonable time and opportunity for such review. Parent authorizes the purpose of approving Company to utilize in the issuance of shares of Preferred Stock upon conversion of Proxy Statement the Notes information concerning Parent and its subsidiaries provided to the Company in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafterconnection with, or contained in, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of WarburgProxy Statement.

Proxy Statement. Promptly following the date of this Agreement, the Company shall prepare the Proxy Statement, and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included. The Company shall use its reasonable best efforts as promptly as practicable to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use its best efforts to prepare and file with cause the SEC, Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. The Company shall also take any action required to be taken under any applicable state securities laws in connection with the registration and qualification in connection with the Merger of 34 common stock of the Company following the Merger. The information provided by the Company for use in the Form S-4, and to be supplied by Newco in writing specifically for use in the Form S-4, shall, at the time the Form S-4 becomes effective and on the date hereof but of the Stockholders Meeting referred to above, be true and correct in no event later than 30 days all material respects and shall not omit to state any material fact required to be stated therein or necessary in order to make such information not misleading, and the Company and Newco each agree to correct any information provided by it for use in the Form S-4 which shall have become false or misleading. Newco and the Company will cooperate with each other in the preparation of the Proxy Statement; without limiting the generality of the foregoing, the Company will im- mediately notify Newco of the receipt of any comments from the SEC and any request by the SEC for any amendment to the Proxy Statement or for additional information. All filings with the SEC, including the Proxy Statement and any amendment thereto, and all mailings to the Company's stockholders in connection with the Merger, including the Proxy Statement, shall be subject to the prior review, comment and approval of Newco (which approval by Newco shall not be unreasonably withheld). Newco will furnish to the Company the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement. The Company agrees to use its best efforts, after consultation with the Initial Closingother parties hereto, preliminary proxy materials to respond promptly to any comments made by the SEC with respect to a meeting of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes Proxy Statement and the issuance of the Warrants any preliminary version thereof filed by it and cause such Proxy Statement to be issued at mailed to the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held Company's stockholders at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) above; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgtime.

Proxy Statement. The Company shall use its reasonable best efforts to prepare and file with the SEC, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting Following approval of the stockholders for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes this Agreement and the issuance Going Private Transaction by the Special Committee, Venturian shall provide each of the Warrants to be issued at the Second Closing as contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file its shareholders with the SEC the definitive a proxy statement describing such transactions and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon requesting the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve each such issuances referred to in clause (i) above; shareholder, provided, however, that in the Board event a Superior Proposal, as defined in Section 6.4 hereof, is submitted, Venturian shall request the vote of Directors may withdraw each such shareholder. The written information supplied by Venturian for the purpose of inclusion in the proxy statement to be sent to the shareholders of Venturian in connection with the meeting of Venturian's shareholders (the "Venturian Shareholders Meeting") shall not, on the date the proxy statement is first mailed to Venturian's shareholders or adversely modify their recommendation at the time of the issuances referred Venturian Shareholders Meeting, contain any untrue statement of a material fact, or omit to state any material fact necessary in clause (i) above if order to make the Board statements made therein, in light of Directors determines the circumstances under which they were made, not misleading. Purchaser and NorcaTec shall provide to Venturian such information with respect to themselves and their affiliates as Venturian may reasonably require in good faith (after consultation connection with the preparation of such proxy statement, and such information shall not contain any untrue statement of a material fact, or fail to state any material fact necessary in order to make any information so provided, in light of the circumstances under which it was provided, not misleading. Venturian shall deliver to Purchaser a reasonable number of copies of such proxy statement prior to distribution to its financial advisors shareholders and legal counsel) that from a financial point of view any and all supplements thereto. Venturian shall use its best efforts to cause the proxy statement to conform to the stockholders requirements of the CompanySecurities Act of 1934, based solely on facts or conditions arising after as amended and the date hereof, that the issuances referred to in clause (i) above are not in the best interests general rules and regulations of the Company's stockholdersSEC thereunder. In the event that the Board of Directors withdraws or adversely modifies Venturian shall use all reasonable efforts to solicit from its recommendation shareholders proxies voting in favor thereof and shall promptly notify Seller of the issuances referred to in clause (i) above, the Company will pay to the Purchasers (based on their pro rata percentage results of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of Venturian Shareholders Meeting after such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth any matter, other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without the prior written consent of Warburgmeeting.

Proxy Statement. (a) As promptly as reasonably practicable following the execution and delivery of this Agreement, Parent and the Company shall prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by the Company), and Parent shall file with the SEC, a proxy statement relating to the Transactions (as amended or supplemented from time to time, the “Proxy Statement”) to be sent to the stockholders of Parent relating to the Parent Stockholders’ Meeting, for the purpose of, among other things: (i) providing Parent’s stockholders with notice of the opportunity to redeem shares of Parent Class A Common Stock (the “Parent Stockholder Redemption”); and (ii) soliciting proxies from holders of Parent Class A Common Stock to vote at the Parent Stockholders’ Meeting in favor of the Parent Proposals. The Proxy Statement shall be in form and substance reasonably acceptable to the Company and Parent, and will comply as to form and substance with the applicable requirements of the Exchange Act and the rules and regulations thereunder. Each of Parent and the Company shall use its reasonable best efforts to: (A) cause the Proxy Statement to prepare and file comply in all material respects with the SECapplicable rules and regulations promulgated by the SEC (including, as promptly as practicable after the date hereof but in no event later than 30 days after the Initial Closing, preliminary proxy materials with respect to a meeting the Company, delivery of the stockholders true and complete copies of the audited or reviewed consolidated balance sheet of W3BCLOUD Partners Limited and its subsidiaries as required thereunder, and the related audited and unaudited consolidated statements of operations, cash flows and changes in equityholders’ equity of W3BCLOUD Partners Limited and its subsidiaries for the purpose of approving the issuance of shares of Preferred Stock upon conversion of the Notes applicable periods, each prepared in accordance with Regulation S-X and US GAAP and, with respect to any audited financials, audited in accordance with the terms auditing standards of the Notes PCAOB and the issuance associated audit reports and consents of the Warrants Company’s independent registered public accounting firm); and (B) promptly notify the others of, cooperate with each other with respect to and respond promptly to any comments of the SEC or its staff. Each of Parent and the Company shall promptly furnish, or cause to be issued at furnished to, the Second Closing as other with all information concerning such party and its subsidiaries, Representatives and stockholders that may be required or reasonably requested in connection with any action contemplated by this Agreement. Thereafter, the Company shall as promptly as possible file with the SEC the definitive proxy statement and acting through its Board of Directors, (i) call a Special Meeting to be held at the earliest practicable date but in no event later than 45 days after the earlier of (x) receiving notification that the SEC is not reviewing the preliminary proxy materials and (y) the conclusion of any SEC review of the preliminary proxy materials, for the sole purpose of voting upon the approval of the issuance of shares of Preferred Stock upon conversion of the Notes in accordance with the terms of the Notes and the issuance of the Warrants to be issued at the Second Closing as contemplated by this Agreement and (ii) include in the proxy statement the recommendation of its Board of Directors that holders of the Common Stock approve such issuances referred to in clause (i) aboveSection 8.01; provided, however, that the Board of Directors may withdraw or adversely modify their recommendation of the issuances referred to in clause (i) above if the Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that from a financial point of view to the stockholders of the Company, based solely on facts or conditions arising after the date hereof, that the issuances referred to in clause (i) above are not in the best interests of the Company's stockholders. In the event that the Board of Directors withdraws or adversely modifies its recommendation of the issuances referred to in clause (i) above, neither Parent nor the Company will pay to the Purchasers (based on their pro rata percentage of the aggregate Purchase Price) in immediately available funds an amount in cash as liquidated damages equal to five percent (5%) of the aggregate principal amount of the Notes issued hereunder, payable within two (2) business days of shall use any such withdrawal or modification. Neither prior to nor at the Special Meeting shall the Company put forth information for any matter, purposes other than those matters relating to transactions expressly contemplated by this Agreement, to the holders of Common Stock for their approval without Agreement unless: (y) such Party obtains the prior written consent of Warburgthe applicable other Party to such use (which consent shall not be unreasonably withheld, conditioned or delayed); or (z) to the extent that use of such information is required (upon advice of counsel) to avoid violation of applicable Law.