Common use of Requisite Stockholder Approval Clause in Contracts

Requisite Stockholder Approval. Immediately following the execution of this Agreement, the Company shall solicit written consent from Stockholders representing the Requisite Stockholder Approval in a form to be mutually agreed upon by the Company and Parent (the “Stockholder Written Consent”). The Company shall promptly deliver to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, immediately after the execution of this Agreement, the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. As soon as reasonably practicable after obtaining the Requisite Stockholder Approval, the Company shall prepare and, in accordance with applicable Legal Requirements, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent the notices required pursuant to Delaware Law. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents shall be subject to review and comment by Parent and shall include an information statement regarding the Company, the terms of this Agreement and the Transactions and the unanimous recommendation of the Company Board that the Stockholders adopt this Agreement and approve the Transactions (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on the date the Information Statement is first sent or furnished to the Stockholders, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. The Company Board shall not alter, modify, change or revoke the Company Recommendation.

Requisite Stockholder Approval. Immediately (a) Subject to applicable law, the rules and regulations of Nasdaq and the Company’s Certificate of Incorporation and Bylaws, the Company shall establish a record date for, call, give notice of, convene and hold a meeting of the stockholders of the Company (the “Company Stockholders’ Meeting”) as promptly as practicable following the execution date of this Agreement (and in no event later than forty days after the commencement of the mailing of the Proxy Statement to the Company’s stockholders), for the purpose of voting upon the approval, authorization and ratification of the Corporate Actions set forth in Section 5.1(d), in accordance with applicable law and the rules and regulations of Nasdaq. Notwithstanding the foregoing, (i) if there are insufficient shares of the Company’s Common Stock necessary to conduct business at the Company Stockholders’ Meeting, the Company may extend the date of the Company Stockholders’ Meeting to the extent (and only to the extent) the Company reasonably determines that such delay is necessary in order to conduct business at the Company Stockholders’ Meeting, (ii) the Company may delay the Company Stockholders’ Meeting to the extent (and only to the extent) the Company reasonably determines that such delay is required by applicable law, and (iii) the Company may delay the Company Stockholders’ Meeting to the extent (and only to the extent) the Company reasonably determines that such delay is necessary to solicit sufficient proxies to secure the Requisite Stockholder Approval. The Company shall solicit from stockholders of the Company proxies in favor of the approval, authorization and ratification of the Corporate Actions in accordance with applicable law and the rules and regulations of Nasdaq, and the Company’s Board of Directors shall (x) recommend that the Company’s stockholders vote to adopt, authorize, approve and ratify the Corporate Actions (the “Recommendation”), (y) use its best efforts to solicit such stockholders to vote in favor of the Corporate Actions and (z) take all other actions necessary or advisable to secure the favorable votes of such stockholders required to approve and effect all of the Corporate Actions. The Company shall establish a record date for, call, give notice of, convene and hold the Company Stockholders’ Meeting in accordance with this Section 5.1(a), whether or not the Company’s Board of Directors at any time subsequent to the date hereof shall have changed its position with respect to its Recommendation or determined that any or all of the Corporate Actions are no longer advisable and/or recommended that stockholders of the Company reject it. (b) Except as required to comply with fiduciary duties under applicable law, the Company’s Board of Directors shall not (i) withdraw or modify the Recommendation in a manner adverse to the Purchasers, or adopt or propose a resolution to withdraw or modify the Recommendation that is or becomes disclosed publicly and which can reasonably be interpreted to indicate that the Company’s Board of Directors or any committee thereof does not support the Corporate Actions or does not believe that the Corporate Actions are in the best interests of the Company’s stockholders or (ii) fail to reaffirm, without qualification, the Recommendation, or fail to state publicly, without qualification, that the Corporate Actions are in the best interests of the Company’s stockholders after the Purchasers request in writing that such action be taken. (c) As soon as practicable following the date of this Agreement, the Company shall solicit written consent from Stockholders representing prepare and file with the Requisite Stockholder Approval in a form Securities Exchange Commission the preliminary Proxy Statement (the “Proxy Statement”), which the Company shall use best efforts to complete and disseminate to the stockholders of the Company as soon as practicable following such filing. No filing of, or amendment or supplement to, or correspondence with the Commission or its staff with respect to the Proxy Statement shall be mutually agreed upon made by the Company without providing the Purchasers and Parent (the “Stockholder Written Consent”)their counsel a reasonable opportunity to review and comment thereon. The Company shall advise the Purchasers, promptly deliver after it receives notice thereof, of any request by the Commission or its staff for an amendment or revisions to Parent a copy the Proxy Statement or requests or comments thereon and responses thereto, and shall provide the Purchasers with copies of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, immediately after the execution of this Agreement, all correspondence between the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. As soon as reasonably practicable after obtaining the Requisite Stockholder Approval, the Company shall prepare and, in accordance with applicable Legal Requirements, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent the notices required pursuant to Delaware Law. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents shall be subject to review and comment by Parent and shall include an information statement regarding the Company, the terms any of this Agreement and the Transactions and the unanimous recommendation of the Company Board that the Stockholders adopt this Agreement and approve the Transactions (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will notits advisors or representatives, on the date one hand, and the Information Statement is first sent Commission or furnished to its staff, on the Stockholders, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. The Company Board shall not alter, modify, change or revoke the Company Recommendationother hand.

Requisite Stockholder Approval. Immediately (a) Subject to applicable law, the rules and regulations of Nasdaq and the Company’s restated certificate of incorporation, as amended, and amended and restated bylaws, the Company shall establish a record date for, call, give notice of, convene and hold a meeting of the stockholders of the Company (the “Company Stockholders’ Meeting”), as promptly as practicable following the execution date of this Agreement, for the purpose of voting upon the approval, authorization and ratification of the Corporate Actions (as defined below), in accordance with applicable law and the rules and regulations of Nasdaq. Notwithstanding the foregoing, (i) if there are insufficient shares of Common Stock necessary to establish a quorum at the Company Stockholders’ Meeting, the Company may postpone or adjourn the date of the Company Stockholders’ Meeting to the extent (and only to the extent) the Company reasonably determines that such postponement or adjournment is necessary in order to conduct business at the Company Stockholders’ Meeting, (ii) the Company may postpone or adjourn the Company Stockholders’ Meeting to the extent (and only to the extent) the Company reasonably determines that such postponement or adjournment is required by applicable law, and (iii) the Company may postpone or adjourn the Company Stockholders’ Meeting to the extent (and only to the extent) the Company reasonably determines that such postponement or adjournment is necessary to solicit sufficient proxies to secure the favorable vote of (A) the holders of a majority of the outstanding shares of Common Stock with respect to the Charter Amendment Actions and (B) the holders of a majority of the outstanding shares of Common Stock present in person or by proxy at the Company Stockholders’ Meeting with respect to the Private Placement Actions (the “Requisite Stockholder Approval”). The Company shall solicit from stockholders of the Company proxies in favor of the approval, authorization and ratification of the Corporate Actions in accordance with applicable law and the rules and regulations of Nasdaq, and the Company’s Board of Directors shall (x) recommend that the Company’s stockholders vote to adopt, authorize, approve and ratify the Corporate Actions (the “Recommendation”), (y) use its reasonable best efforts to solicit such stockholders to vote in favor of the Corporate Actions and (z) use its reasonable best efforts take all other actions necessary or advisable to secure the favorable votes of such stockholders required to approve and effect all of the Corporate Actions. The Company shall establish a record date for, call, give notice of, convene and hold the Company Stockholders’ Meeting in accordance with this Section 9, whether or not the Company’s Board of Directors at any time subsequent to the date hereof shall have changed its position with respect to its Recommendation or determined that any or all of the Corporate Actions are no longer advisable and/or recommended that stockholders of the Company reject any or all of the Corporate Actions. (b) Except as required to comply with fiduciary duties under applicable law, the Company’s Board of Directors shall not (i) withdraw or modify the Recommendation in a manner adverse to any Investor, or adopt or propose a resolution to withdraw or modify the Recommendation that is or becomes disclosed publicly and which can reasonably be interpreted to indicate that the Company’s Board of Directors or any committee thereof does not support the Corporate Actions or does not believe that the Corporate Actions are in the best interests of the Company’s stockholders or (ii) fail to reaffirm, without qualification, the Recommendation, or fail to state publicly, without qualification, that the Corporate Actions are in the best interests of the Company’s stockholders after any Investor requests in writing that such action be taken. (c) As soon as practicable following the date of this Agreement, the Company shall solicit written consent from Stockholders representing prepare and file with the Requisite Stockholder Approval in a form Commission the preliminary Proxy Statement (the “Proxy Statement”), which the Company shall use reasonable best efforts to complete and disseminate to the stockholders of the Company as soon as practicable following such filing. No filing of, or amendment or supplement to, or correspondence with the Commission or its staff with respect to the Proxy Statement shall be mutually agreed upon made by the Company without providing the Investors a reasonable opportunity to review and Parent (the “Stockholder Written Consent”)comment thereon. The Company shall advise the Investors, promptly deliver after it receives notice thereof, of any request by the Commission or its staff for an amendment or revisions to Parent a copy the Proxy Statement or requests or comments thereon and responses thereto, and shall provide the Investors with copies of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, immediately after the execution of this Agreement, all correspondence between the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. As soon as reasonably practicable after obtaining the Requisite Stockholder Approval, the Company shall prepare and, in accordance with applicable Legal Requirements, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent the notices required pursuant to Delaware Law. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents shall be subject to review and comment by Parent and shall include an information statement regarding the Company, the terms any of this Agreement and the Transactions and the unanimous recommendation of the Company Board that the Stockholders adopt this Agreement and approve the Transactions (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will notits advisors or representatives, on the date one hand, and the Information Statement is first sent Commission or furnished to its staff, on the Stockholders, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. The Company Board shall not alter, modify, change or revoke the Company Recommendationother hand.

Requisite Stockholder Approval. Immediately following the execution of this Agreement, the Company shall solicit written consent from Stockholders representing the Requisite Stockholder Approval in a form to be mutually agreed upon by the Company and Parent (the “Stockholder Written Consent”). The Company shall promptly deliver to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, immediately after the execution of this Agreement, the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. As soon as reasonably practicable after obtaining the Requisite Stockholder Approval, the Company shall prepare and, date hereof take all necessary action in accordance with applicable Legal Requirements, send the Delaware General Corporation Law and its Certificate of Incorporation and by-laws to all obtain the written consent of its Stockholders on the record date required thereunder for the Stockholder Written Consents who did not execute a Stockholder Written Consent the notices required pursuant to Delaware Law. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents shall be subject to review and comment by Parent and shall include an information statement regarding the Company, the terms adoption of this Agreement and the Transactions approval of the Mergers (the “Requisite Stockholder Approval”) by written consent in lieu of a meeting. If (a) the Requisite Stockholder Approval is not obtained on or prior to November 15, 2006, and (b) Parent has not terminated this Agreement pursuant to Section 7.1(e), the unanimous recommendation Company shall as promptly as practicable thereafter establish a record date for, call, give notice of, convene and hold a meeting of the Company’s stockholders (the “Company Stockholders’ Meeting”) for the purpose of voting upon the adoption of this Agreement in accordance with Delaware Corporation Law; provided that (x) nothing herein shall prevent the Company from postponing or adjourning the Company Stockholders’ Meeting if there are insufficient shares of the Common Stock necessary to conduct business at the Company Stockholders’ Meeting or from obtaining the Requisite Stockholder Vote by written consent in lieu of a meeting, and (b) from and after the date on which the Company gives such notice of the Company Board that the Stockholders adopt Stockholders’ Meeting, Parent shall not terminate this Agreement and approve pursuant to Section 7.1(e) unless the Transactions Company has been unable to obtain the Requisite Stockholder Approval within thirty (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on 30) days of the date the Information Statement is first sent or furnished to the Stockholders, contain any statement which, at of such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirementsnotice. The Company Board may solicit from the Company’s stockholders proxies in favor of the adoption of this Agreement in accordance with Delaware Corporation Law, and shall not alter, modify, change or revoke use commercially reasonable efforts to secure the Company RecommendationRequisite Stockholder Approval.

Requisite Stockholder Approval. Immediately (a) Subject to applicable law, the rules and regulations of Nasdaq and the Company’s restated certificate of incorporation, as amended, and amended and restated bylaws, the Company shall establish a record date for, call, give notice of, convene and hold a meeting of the stockholders of the Company (the “Company Stockholders’ Meeting”), as promptly as practicable following the execution date of this Agreement, for the purpose of voting upon the approval, authorization and ratification of the Corporate Actions (as defined below), in accordance with applicable law and the rules and regulations of Nasdaq. Notwithstanding the foregoing, (i) if there are insufficient shares of Common Stock necessary to establish a quorum at the Company Stockholders’ Meeting, the Company may postpone or adjourn the date of the Company Stockholders’ Meeting to the extent (and only to the extent) the Company reasonably determines that such postponement or adjournment is necessary in order to conduct business at the Company Stockholders’ Meeting, (ii) the Company may postpone or adjourn the Company Stockholders’ Meeting to the extent (and only to the extent) the Company reasonably determines that such postponement or adjournment is required by applicable law, and (iii) the Company may postpone or adjourn the Company Stockholders’ Meeting to the extent (and only to the extent) the Company reasonably determines that such postponement or adjournment is necessary to solicit sufficient proxies to secure the favorable vote of the holders of a majority of the outstanding shares of Common Stock present in person or by proxy at the Company Stockholders’ Meeting with respect to the Corporate Actions (the “Requisite Stockholder Approval”). The Company shall solicit from stockholders of the Company proxies in favor of the approval, authorization and ratification of the Corporate Actions in accordance with applicable law and the rules and regulations of Nasdaq, and the Company’s Board of Directors shall (x) recommend that the Company’s stockholders vote to adopt, authorize, approve and ratify the Corporate Actions (the “Recommendation”), (y) use its reasonable best efforts to solicit such stockholders to vote in favor of the Corporate Actions and (z) use its reasonable best efforts take all other actions necessary or advisable to secure the favorable votes of such stockholders required to approve and effect all of the Corporate Actions. The Company shall establish a record date for, call, give notice of, convene and hold the Company Stockholders’ Meeting in accordance with this Section 9, whether or not the Company’s Board of Directors at any time subsequent to the date hereof shall have changed its position with respect to its Recommendation or determined that any or all of the Corporate Actions are no longer advisable and/or recommended that stockholders of the Company reject any or all of the Corporate Actions. (b) Except as required to comply with fiduciary duties under applicable law, the Company’s Board of Directors shall not (i) withdraw or modify the Recommendation in a manner adverse to any Investor, or adopt or propose a resolution to withdraw or modify the Recommendation that is or becomes disclosed publicly and which can reasonably be interpreted to indicate that the Company’s Board of Directors or any committee thereof does not support the Corporate Actions or does not believe that the Corporate Actions are in the best interests of the Company’s stockholders or (ii) fail to reaffirm, without qualification, the Recommendation, or fail to state publicly, without qualification, that the Corporate Actions are in the best interests of the Company’s stockholders after any Investor requests in writing that such action be taken. (c) As soon as practicable following the date of this Agreement, the Company shall solicit written consent from Stockholders representing prepare and file with the Requisite Stockholder Approval in a form Commission the preliminary Proxy Statement (the “Proxy Statement”), which the Company shall use reasonable best efforts to complete and disseminate to the stockholders of the Company as soon as practicable following such filing. No filing of, or amendment or supplement to, or correspondence with the Commission or its staff with respect to the Proxy Statement shall be mutually agreed upon made by the Company without providing the Investors a reasonable opportunity to review and Parent (the “Stockholder Written Consent”)comment thereon. The Company shall advise the Investors, promptly deliver after it receives notice thereof, of any request by the Commission or its staff for an amendment or revisions to Parent a copy the Proxy Statement or requests or comments thereon and responses thereto, and shall provide the Investors with copies of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, immediately after the execution of this Agreement, all correspondence between the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. As soon as reasonably practicable after obtaining the Requisite Stockholder Approval, the Company shall prepare and, in accordance with applicable Legal Requirements, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent the notices required pursuant to Delaware Law. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents shall be subject to review and comment by Parent and shall include an information statement regarding the Company, the terms any of this Agreement and the Transactions and the unanimous recommendation of the Company Board that the Stockholders adopt this Agreement and approve the Transactions (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will notits advisors or representatives, on the date one hand, and the Information Statement is first sent Commission or furnished to its staff, on the Stockholders, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. The Company Board shall not alter, modify, change or revoke the Company Recommendationother hand.

Requisite Stockholder Approval. (a) Immediately following after the execution of this Agreement, the Company shall solicit written consent from Stockholders representing the Requisite Stockholder Approval in a form to be mutually agreed upon by from the Company Stockholders and Parent (the “Stockholder Written Consent”). The Company shall promptly deliver to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, immediately after the execution of this Agreement, the all Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. As soon as reasonably practicable after obtaining the Requisite Stockholder Approval, the Company shall prepare andStockholders, in accordance with the FBCA, the Company’s articles of incorporation, the Company’s bylaws and any other applicable Legal Requirementslaws, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Company Stockholder Written Consent in the notices required form attached hereto as Exhibit C, which Company Stockholder Written Consent shall (i) include a solicitation of the Requisite Stockholder Approval and (ii) specify that approval and adoption of this Agreement shall constitute approval by the Company Stockholders of (A) the Company Voting Proposal, (B) the escrow and indemnification obligations of the Company Stockholders set forth in Article VIII of this Agreement (C) the deposit of the Escrowed Cash and the Escrowed Stock into the Escrow Fund pursuant to Delaware Law. Such materials submitted this Agreement, and (D) the appointment of the Stockholder Representative under this Agreement, to act for and on behalf of the Company Stockholders in connection accordance with such Stockholder Written Consents the terms hereof. (b) The solicitation shall be subject to review and comment by Parent and shall include an information statement regarding contain (i) the unanimous determination of the Company, the terms ’s board of directors that this Agreement and the Transactions Integrated Merger and the transactions contemplated thereby are fair to, and in the best interests of, the Company and the Company Stockholders, and (ii) the unanimous recommendation of the Company Board Company’s board of directors that the Company Stockholders approve and adopt this Agreement and approve the Transactions (Integrated Merger and the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on the date the Information Statement is first sent or furnished to the Stockholders, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleadingtransactions contemplated thereby. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. The Company Board Company’s board of directors shall not alter, modify, change or revoke its unanimous approval of this Agreement and the Integrated Merger and the transactions contemplated thereby, nor its unanimous recommendation that the Company RecommendationStockholders approve and adopt this Agreement and the Integrated Merger and the transactions contemplated thereby.

Requisite Stockholder Approval. Immediately following (a) The Company shall within one Business Day after the execution date of this Agreement, Agreement mail or otherwise provide to its Stockholders (a) any information required by the Company shall solicit written consent from Stockholders representing DGCL (i) in connection with the Requisite Stockholder Approval in a form and (ii) with respect to be mutually agreed upon by any appraisal rights available under the Company DGCL and Parent (b) the “Stockholder Written Consent”)Information Statement. The Company shall promptly deliver to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from Information Statement and any Stockholder pursuant to such solicitation. It is anticipated that, immediately after the execution of this Agreement, the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. As soon as reasonably practicable after obtaining the Requisite Stockholder Approval, the Company shall prepare and, in accordance with applicable Legal Requirements, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent the notices required pursuant to Delaware Law. Such other materials submitted to the Stockholders in connection with such Stockholder Written Consents the transactions contemplated by this Agreement shall be subject to prior review and comment approval by Parent, which approval shall not be unreasonably delayed or withheld. The Company shall give Parent and prompt notice of any demand received by the Company regarding appraisal rights or the exercise of appraisal rights. Except with the prior written consent of Parent (which shall include an information statement regarding not be unreasonably delayed or withheld) or as may otherwise be required under applicable Law, the Company shall not make any payment with respect to, or settle or offer to settle, any such demands. (b) The Company will use its reasonable efforts to obtain, within one Business Days after the date hereof, the Requisite Stockholder Approval by written consent for the purpose of adopting this Agreement in accordance with the DGCL, the Company, ’s Certificate of Incorporation and Bylaws. The Board of Directors of the terms Company has adopted a resolution recommending the adoption of this Agreement and by the Transactions and Company’s Stockholders (the unanimous recommendation “Company Recommendation”) and, except as provided in Section 5.8, the Board of Directors of the Company Board that (i) will continue to recommend to the Stockholders that they adopt this Agreement and approve the Transactions transactions contemplated hereby and (ii) will use its reasonable best efforts to obtain any necessary adoption and approval by the “Information Statement”). Each party agrees that information supplied by such party for inclusion in Company’s Stockholders of this Agreement and the Information Statement will not, on the date the Information Statement is first sent or furnished to the Stockholders, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. The Company Board shall not alter, modify, change or revoke the Company Recommendationtransactions contemplated hereby.

Requisite Stockholder Approval. Immediately following the execution of this Agreement, the The Company shall solicit written consent from Stockholders representing take all action necessary under applicable law to call, give notice of and hold a meeting of the Requisite Stockholder Approval holders of Common Stock to consider and vote to approve (a) the conversion of the Series X Preferred Stock issued pursuant to this Agreement and the Merger Agreement into shares of Common Stock in a form to be mutually agreed upon accordance with Nasdaq Listing Rule 5635(a) and (b) if deemed necessary or appropriate by the Company or as otherwise required by applicable law or Contract, to authorize sufficient shares of Common Stock in the Certificate of Incorporation for the conversion of the Series X Preferred Stock issued pursuant to this Agreement and Parent the Merger Agreement and/or to effectuate a reverse stock split (collectively, the “Charter Amendment Proposal”) pursuant to the terms of the Merger Agreement (collectively, the “Company Stockholder Written ConsentMatters” and such meeting, the “Company Stockholder Meeting”). The Company Stockholder Meeting shall be held as promptly deliver to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, immediately as practicable after the execution date that the definitive proxy statement relating to the Company Stockholder Meeting (the “Proxy Statement”) is filed with the Commission, and in any event no later than one hundred and twenty (120) days after the closing of this Agreementthe Merger. The Company shall take reasonable measures to ensure that all proxies solicited in connection with the Company Stockholder Meeting are solicited in compliance with applicable law. Notwithstanding anything to the contrary contained herein, if on the date of the Company Stockholder Meeting, or a date preceding the date on which the Company Stockholder Meeting is scheduled, the Company reasonably believes that (a) it will not receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are proxies sufficient to fully and irrevocably deliver obtain the approval of the holders of Common Stock (the “Requisite Stockholder Approval. As soon as reasonably practicable after obtaining ”), whether or not a quorum would be present or (b) it will not have sufficient shares of Common Stock represented (whether in person or by proxy) to constitute a quorum necessary to conduct the Requisite business of the Company Stockholder ApprovalMeeting, the Company shall prepare andmay postpone or adjourn, in accordance with applicable Legal Requirementsor make one or more successive postponements or adjournments of, send to all Stockholders on the record Company Stockholder Meeting as long as the date for of the Company Stockholder Written Consents who did Meeting is not execute a Stockholder Written Consent the notices required pursuant to Delaware Law. Such materials submitted to the Stockholders postponed or adjourned more than an aggregate of thirty (30) days in connection with such Stockholder Written Consents shall be subject to review and comment by Parent and shall include an information statement regarding the Company, the terms of this Agreement and the Transactions and the unanimous recommendation of the Company Board that the Stockholders adopt this Agreement and approve the Transactions (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on the date the Information Statement is first sent any postponements or furnished to the Stockholders, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirementsadjournments. The Company agrees that, subject to the Board of Director’s compliance with its fiduciary duties under applicable law, (a) the Board of Directors shall not alter, modify, change or revoke recommend that the holders of Common Stock vote to approve the Company RecommendationStockholder Matters and shall use commercially reasonable efforts to solicit such approval within the time frame set forth in this Section 4.11 and (b) the Proxy Statement shall include a statement to the effect that the Board of Directors recommends that the Company’s stockholders vote to approve the Company Stockholder Matters.