Common use of Shareholder Approval; Proxy Statement Clause in Contracts

Shareholder Approval; Proxy Statement. (a) Concurrently with or promptly following the date of this Agreement, the Company shall prepare and file with the SEC a preliminary proxy statement on Schedule 14A for use in connection with a special meeting of stockholders of the Company held to obtain the Shareholder Approval. The Company shall use its reasonable best efforts to respond promptly to any comments of the SEC or its staff and cause the preliminary proxy statement to be cleared by the SEC or its staff, and to cause a definitive proxy statement to be mailed to the Company’s stockholders as promptly as practicable after responding to all such comments to the satisfaction of the SEC or its staff. Both the preliminary proxy statement and the definitive proxy statement shall include a statement to the effect that the Board recommends that the Company’s stockholders vote in favor of the issuance and sale of the Shares at the Stockholders Meeting. The Company shall notify the Investors promptly of 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 will supply the Investors with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the proxy statement. If at any time prior to the special meeting of stockholders there shall occur any event that, in the good faith judgment of the Company, after consulting with outside counsel, should be set forth in an amendment or supplement to the proxy statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement, in each case to the extent required by applicable Law in the good faith judgment of the Company, after consulting with outside counsel. The Investors shall cooperate with the Company in the preparation of the proxy statement and any amendment or supplement thereto. Prior to filing or mailing the proxy statement or making any other required filing with the SEC (including any amendment or supplement thereto) or responding to any comments of the SEC or its staff with respect thereto, the Company shall provide the Investors and their representatives with a reasonable opportunity to review and comment on such document or response. Any notification or communication by the Company pursuant to this Section 6.11 may be made by e-mail notwithstanding the provisions of Section 8.3

Shareholder Approval; Proxy Statement. If (ai) Concurrently with on any date after the Initial Closing Date the sum of (A) the number of Conversion Shares issued and (B) the number of Conversion Shares issuable as of such date pursuant to the conversion of all outstanding Preferred Shares (without regard to any limitations on conversions), exceeds 19.99% of the number of shares of Common Stock outstanding immediately prior to the Initial Closing or promptly following (ii) on February 26, 1999 the sum of (A) the number of Conversion Shares issued and (B) the number of Conversion Shares issuable as of such date pursuant to the conversion of this Agreementall outstanding Preferred Shares (without regard to any limitations on conversions), exceeds 7.5% of the number of shares of Common Stock outstanding immediately prior to the Initial Closing (the earlier of such dates being referred to herein as the "PROXY STATEMENT TRIGGER DATE"), the Company shall prepare and file with provide each stockholder entitled to vote at the SEC a preliminary proxy statement on Schedule 14A for use in connection with a special next meeting of stockholders of the Company, which meeting shall not be later than (x) in the case of a Proxy Statement Trigger Date described in clause (i) above, 75 days after the Proxy Statement Trigger Date or (y) in the case of a Proxy Statement Trigger Date described in clause (ii) above, June 15, 1999 (in either case, the "STOCKHOLDER MEETING DEADLINE"), a proxy statement, which has been previously reviewed by the Buyers and a counsel of their choice, soliciting each such stockholder's affirmative vote at such stockholder meeting for approval of the Company's issuance of all of the Securities as described in this Agreement, and the Company held shall use its best efforts to obtain solicit its stockholders' approval of such issuance of the Shareholder ApprovalSecurities and cause the Board of Directors of the Company to recommend to the stockholders that they approve such proposal. If the Company fails to hold a meeting of its stockholders by the Stockholder Meeting Deadline, then, as partial relief (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to each holder of Preferred Shares an amount in cash per Preferred Share equal to the product of (i) $1,000; multiplied by (ii) .025; multiplied by (iii) the quotient of (x) the number of days after the Stockholder Meeting Deadline that a meeting of the Company's stockholders is not held, divided by (y) 30. The Company shall use its reasonable best efforts make the payments referred to respond promptly to any comments in the immediately preceding sentence within five days of the SEC or its staff and cause earlier of (I) the preliminary proxy statement to be cleared by the SEC or its staff, and to cause a definitive proxy statement to be mailed to the Company’s stockholders as promptly as practicable after responding to all such comments to the satisfaction holding of the SEC or its staff. Both the preliminary proxy statement and the definitive proxy statement shall include a statement to the effect that the Board recommends that the Company’s stockholders vote in favor of the issuance and sale of the Shares at the Stockholders Meeting. The Company shall notify the Investors promptly of 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 will supply the Investors with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the proxy statement. If at any time prior to the special meeting of stockholders there shall occur any event that, in the good faith judgment of the Company, after consulting with outside counsel, should be set forth in an amendment or supplement to the proxy statement's stockholders, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement, in each case to the extent required by applicable Law failure of which resulted in the good faith judgment requirement to make such payments, and (II) the last day of each 30-day period beginning on the Company, after consulting with outside counselStockholder Meeting Deadline. The Investors shall cooperate with In the event the Company fails to make such payments in a timely manner, such payments shall bear interest at the preparation rate of the proxy statement and any amendment or supplement thereto. Prior to filing or mailing the proxy statement or making any other required filing with the SEC 2.0% per month (including any amendment or supplement theretopro rated for partial months) or responding to any comments of the SEC or its staff with respect thereto, the Company shall provide the Investors and their representatives with a reasonable opportunity to review and comment on such document or response. Any notification or communication by the Company pursuant to this Section 6.11 may be made by e-mail notwithstanding the provisions of Section 8.3until paid in full.

Shareholder Approval; Proxy Statement. (a) Concurrently with or The Company agrees to use its reasonable best efforts to call and hold as promptly as reasonably practicable following the date Closing Date a meeting of this Agreementthe stockholders of the Company to obtain the Shareholder Approval (the “Initial Shareholder Meeting”) and as promptly as reasonably practicable following the Closing Date (and in any event, no later than thirty (30) days after the Closing Date), the Company shall will prepare and file with the SEC Commission a preliminary proxy statement on Schedule 14A for use to be sent to the Company’s stockholders in connection with a special meeting the Initial Shareholder Meeting (the “Proxy Statement”). Subject to the Directors’ fiduciary duties, the Proxy Statement shall include the recommendation of the Board of Directors that the stockholders of the Company held vote in favor of the Shareholder Approval. If the Shareholder Approval is not obtained at the Shareholder Meeting, then the Company will use its reasonable best efforts to obtain the Shareholder ApprovalApproval at up to two additional special and/or annual meetings of the stockholders (each, a “Subsequent Shareholder Meeting,” and each together with the Initial Shareholder Meeting, a “Shareholder Meeting”) prior to February 28, 2011 (the “Shareholder Approval Deadline”). The With respect to each Shareholder Meeting, the Company shall use its reasonable best efforts to solicit from the stockholders of the Company proxies in favor of the Shareholder Approval and to otherwise obtain the Shareholder Approval. The Purchasers agree to furnish to the Company all information concerning the Purchasers and their Affiliates and each Purchaser Nominated Director as the Company may reasonably request in connection with any Shareholder Meeting. The Company shall respond promptly to any comments of received from the SEC or its staff Commission with respect to the Proxy Statement (and each proxy statement filed with respect to any Subsequent Shareholder Meeting), and the Company shall cause the preliminary proxy statement to be cleared by the SEC or its staff, and to cause a definitive proxy statement Proxy Statement to be mailed to the Company’s stockholders at the earliest practicable date. The Company shall provide to the Purchasers, as promptly as practicable after responding to all such comments to the satisfaction of the SEC or its staff. Both the preliminary proxy statement and the definitive proxy statement shall include a statement to the effect that the Board recommends that the Company’s stockholders vote in favor of the issuance and sale of the Shares at the Stockholders Meeting. The Company shall notify the Investors promptly of the receipt of thereof, any written comments from the SEC Commission or its staff and of any written request by from the SEC Commission or its staff for amendments or supplements to the Proxy Statement (or any proxy statement or for additional information filed with respect to any Subsequent Shareholder Meeting) and will supply shall provide the Investors Purchasers with copies of all correspondence between the Company or any of its representativesCompany, on the one hand, and the SEC or Commission and its staff, on the other hand, relating to the Proxy Statement (or any proxy statement filed with respect to the proxy statementany Subsequent Shareholder Meeting). If at any time prior Notwithstanding anything to the special meeting of stockholders there shall occur any event thatcontrary stated above, in the good faith judgment of the Company, after consulting with outside counsel, should be set forth in an amendment or supplement to the proxy statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement, in each case to the extent required by applicable Law in the good faith judgment of the Company, after consulting with outside counsel. The Investors shall cooperate with the Company in the preparation of the proxy statement and any amendment or supplement thereto. Prior prior to filing or mailing the Proxy Statement, any proxy statement or making filed with respect to any other required filing with the SEC (including Subsequent Shareholder Meeting or, in each case, any amendment or supplement thereto) thereto or responding to any comments of the SEC Commission or its staff with respect thereto, the Company shall provide the Investors and their representatives Purchasers with a reasonable opportunity to review and comment on such document or response. Any notification or communication by Notwithstanding anything to the contrary set forth herein, in no event shall the Company pursuant to this Section 6.11 seek Shareholder Approval after the Shareholder Approval Deadline and in no event may be made by e-mail notwithstanding the provisions number of Section 8.3Shareholder Meetings exceed three.

Shareholder Approval; Proxy Statement. The Company agrees to use its reasonable best efforts to, at the next regularly scheduled annual meeting of the stockholders of the Company (awhich annual meeting shall in no event occur later than April 30, 2011), obtain the Shareholder Approval (the “Shareholder Meeting”), and as promptly as reasonably practicable in accordance with such timing (and in any event no later than forty five (45) Concurrently with or promptly following days prior to the date of this AgreementShareholder Meeting, the “Latest Filing Date”), the Company shall will prepare and file with the SEC a preliminary proxy statement on Schedule 14A for use to be sent to the Company’s stockholders in connection with a special meeting of stockholders the Shareholder Meeting (the “Proxy Statement”). The Company shall cause the Proxy Statement to comply in all material respects with the provisions of the Company held Exchange Act and the rules and regulations promulgated thereunder and to obtain satisfy all applicable NASDAQ rules. Subject to the directors’ fiduciary duties, the Proxy Statement shall include the Board’s unanimous recommendation that the stockholders vote in favor of the Shareholder ApprovalApproval (which, for the avoidance of doubt, shall include the amendments to the Articles contemplated in the definition thereof). The Company will cause the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Stockholders’ Meeting, to 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; provided, however, that no representation or warranty is made by the Company with respect to information supplied by Investor for inclusion or incorporation by reference in the Proxy Statement. If the Shareholder Approval is not obtained at the Shareholder Meeting, then the Company shall use its reasonable best efforts to respond promptly obtain the Shareholder Approval as soon as practicable thereafter. Until the Shareholder Approval has been obtained, the Company shall use its reasonable best efforts to any solicit from its stockholders proxies in favor of the Shareholder Approval and to obtain the Shareholder Approval at each meeting of the Company’s stockholders occurring after the First Closing Date. Investor shall provide to the Company all information concerning Investor as may be reasonably requested by the Company in connection with the Proxy Statement and shall otherwise assist and cooperate with the Company in the preparation of the Proxy Statement and resolution of comments of the SEC or its staff and related thereto. Investor will cause the preliminary proxy information relating to Investor supplied by it for inclusion in the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Stockholders’ Meeting, not to contain any untrue statement of a material fact or omit to state any material fact required to be cleared stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by Investor with respect to information supplied by the Company for inclusion or incorporation by reference in the Proxy Statement. The Company shall respond reasonably promptly to any comments received from the SEC or its staffwith respect to the Proxy Statement, and to the Company shall cause a definitive proxy statement the Proxy Statement (containing the recommendation described above) to be mailed to the Company’s stockholders as promptly as practicable no later than fifteen (15) days after responding to all such comments the Latest Filing Date (it being agreed by the Parties that, to the satisfaction extent the First Closing shall not have occurred by such date, such Proxy Statement may contain language, mutually acceptable to the Parties, stating that the request for, and unanimous recommendation by the Board of, the Shareholder Approval (and all of the SEC action contemplated thereby) is contingent upon the occurrence of the First Closing on or its staff. Both the preliminary proxy statement and the definitive proxy statement shall include a statement prior to the effect that the Board recommends that the Company’s stockholders vote in favor date of the issuance and sale of the Shares at the Stockholders Shareholder Meeting). The Company shall notify the Investors Investor, as promptly of the as reasonably practicable after receipt thereof, of any comments from the SEC or its staff and of any request by from the SEC or its staff for amendments or supplements to the proxy statement Proxy Statement (and shall provide copies of any such written comments or for additional information requests to Investor) and will supply the Investors shall provide Investor with copies of all correspondence between the Company Company, its Subsidiaries or any of its their respective directors, officers, employees, investment bankers, financial advisors, attorneys, accountants or other advisors, agents or representatives, on the one hand, and the SEC or its staffthe staff of the SEC, on the other hand, with respect relating to the proxy statementProxy Statement. If at any time prior Notwithstanding anything to the special meeting of stockholders there shall occur any event thatcontrary herein, in the good faith judgment of the Company, after consulting with outside counsel, should be set forth in an amendment or supplement to the proxy statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement, in each case to the extent required by applicable Law in the good faith judgment of the Company, after consulting with outside counsel. The Investors shall cooperate with the Company in the preparation of the proxy statement and any amendment or supplement thereto. Prior prior to filing or mailing the proxy statement or making any other required filing with the SEC Proxy Statement (including or, in each case, any amendment or supplement thereto) or responding to any comments of the SEC or its staff with respect thereto, the Company shall provide the Investors and their representatives Investor with a reasonable opportunity to review and comment on such document or response. Any notification or communication by the Company pursuant to this Section 6.11 may be made by e-mail notwithstanding the provisions of Section 8.3.

Shareholder Approval; Proxy Statement. (a) Concurrently with If the Principal Market ------------------------------------ upon which the Registrable Securities are traded requires that the Company receive the approval of its shareholders prior to issuing shares of Common Stock, upon conversion of the Preferred Shares or promptly following exercise of the date Warrants, equal to or greater than 20% of this Agreementthe number of shares of Common Stock outstanding immediately prior to the issuance of such Preferred Shares and Warrants, then the Company shall prepare and file with provide each stockholder entitled to vote at the SEC a preliminary proxy statement on Schedule 14A for use in connection with a special next meeting of stockholders of the Company, which meeting shall not be later than 60 days after any date after the Initial Closing Date on which the sum of (A) the number of Conversion Shares and Warrant Shares issued and (B) the number of Conversion Shares and Warrant Shares issuable as of such date pursuant to the conversion of all outstanding Preferred Shares and exercise of Warrants, as the case may be (without regard to any limitations on conversions or exercise), exceeds 15% of the number of shares of Common Stock outstanding immediately prior to the Initial Closing (the "STOCKHOLDER MEETING DEADLINE"), a proxy statement, which has been previously reviewed by the Buyers and a counsel of their choice, soliciting each such stockholder's affirmative vote at such stockholder meeting for approval of the Company's issuance of all of the Securities as described in this Agreement, and the Company held shall use its best efforts to obtain solicit its stockholders' approval of such issuance of the Shareholder ApprovalSecurities and cause the Board of Directors of the Company to recommend to the stockholders that they approve such proposal. Such proxy statement shall not seek approval of any matters other than (i) the approval described in the preceding sentence and (ii) the election of directors, (iii) the ratification of certified public accountants. If the Company fails to hold a meeting of its stockholders by the Stockholder Meeting Deadline, then, as partial relief (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to each holder of Preferred Shares an amount in cash per Preferred Share equal to the product of (i) $1,000; multiplied by (ii) .025; multiplied by (iii) the quotient of (x) the number of days after the Stockholder Meeting Deadline that a meeting of the Company's stockholders is not held, divided by (y) 30. The Company shall use its reasonable best efforts make the payments referred to respond promptly to any comments in the immediately preceding sentence within five days of the SEC or its staff and cause earlier of (I) the preliminary proxy statement to be cleared by the SEC or its staff, and to cause a definitive proxy statement to be mailed to the Company’s stockholders as promptly as practicable after responding to all such comments to the satisfaction holding of the SEC or its staff. Both the preliminary proxy statement and the definitive proxy statement shall include a statement to the effect that the Board recommends that the Company’s stockholders vote in favor of the issuance and sale of the Shares at the Stockholders Meeting. The Company shall notify the Investors promptly of 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 will supply the Investors with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the proxy statement. If at any time prior to the special meeting of stockholders there shall occur any event that, in the good faith judgment of the Company, after consulting with outside counsel, should be set forth in an amendment or supplement to the proxy statement's stockholders, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement, in each case to the extent required by applicable Law failure of which resulted in the good faith judgment requirement to make such payments, and (II) the last day of each 30-day period beginning on the Company, after consulting with outside counselStockholder Meeting Deadline. The Investors shall cooperate with In the event the Company fails to make such payments in a timely manner, such payments shall bear interest at the preparation rate of the proxy statement and any amendment or supplement thereto. Prior to filing or mailing the proxy statement or making any other required filing with the SEC 2.5% per month (including any amendment or supplement theretopro rated for partial months) or responding to any comments of the SEC or its staff with respect thereto, the Company shall provide the Investors and their representatives with a reasonable opportunity to review and comment on such document or response. Any notification or communication by the Company pursuant to this Section 6.11 may be made by e-mail notwithstanding the provisions of Section 8.3until paid in full.

Shareholder Approval; Proxy Statement. (a) Concurrently with or promptly The Company agrees to use its reasonable best efforts to call and hold as soon as reasonably practicable following the date Closing a meeting of this Agreementthe shareholders of the Company to obtain the Shareholder Approval (the “Shareholder Meeting”), and as promptly as reasonably practicable in accordance with such timing (and in any event no later than 75 days following the Closing), the Company shall will prepare and file with the SEC a preliminary proxy statement on Schedule 14A for use to be sent to the Company’s shareholders in connection with a special meeting of stockholders the Shareholder Meeting (the “Proxy Statement”). The Company shall cause the Proxy Statement to comply in all material respects with the provisions of the Company held Exchange Act and the rules and regulations promulgated thereunder and to obtain satisfy all applicable NASDAQ rules. The Proxy Statement shall include the Board’s unanimous recommendation that the shareholders vote in favor of the Shareholder Approval. The Company will cause the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Shareholders’ Meeting, to 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 the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by the Company with respect to information supplied by Investor in writing specifically for inclusion in the Proxy Statement. If the Shareholder Approval is not obtained at the Shareholder Meeting, then the Company shall use its reasonable best efforts to respond promptly obtain the Shareholder Approval as soon as practicable thereafter. Until the Shareholder Approval has been obtained, the Company shall use its reasonable best efforts to any solicit from its shareholders proxies in favor of the Shareholder Approval and to obtain the Shareholder Approval at each meeting of the Company’s shareholders occurring after the Closing Date. Investor shall provide to the Company all information concerning Investor as may be reasonably requested by the Company in connection with the Proxy Statement and shall otherwise reasonably assist and cooperate with the Company in the preparation of the Proxy Statement and resolution of comments of the SEC or its staff and related thereto. Investor will cause the preliminary proxy information relating to Investor supplied by it for inclusion in the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Shareholder Meeting, not to contain any untrue statement of a material fact or omit to state any material fact required to be cleared 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, however, that no representation or warranty is made by Investor with respect to information supplied by the Company for inclusion or incorporation by reference in the Proxy Statement. The Company shall respond as soon as reasonably practicable to any comments received from the SEC or its staffwith respect to the Proxy Statement (and to the extent reasonably practicable shall address all SEC comments no less than 30 days after the filing of the Proxy Statement), and to the Company shall cause a definitive proxy statement the Proxy Statement (containing the recommendation described above) to be mailed to the Company’s stockholders as promptly as shareholders at the earliest reasonably practicable after responding to all such comments to date (and in any event no later than (i) five Business Days following the satisfaction SEC’s completion of its review of the Proxy Statement or (ii) if the SEC or its staff. Both does not notify the Company that it will review the preliminary proxy statement and Proxy Statement within 10 calendar days after the definitive proxy statement shall include a statement to Company files the effect that preliminary Proxy Statement with the Board recommends that SEC, five Business Days following such tenth calendar day after the Company’s stockholders vote in favor of Company files the issuance and sale of preliminary Proxy Statement with the Shares at the Stockholders MeetingSEC). The Company shall notify the Investors Investor, as promptly of the as reasonably practicable after receipt thereof, of any comments from the SEC or its staff and of any request by from the SEC or its staff for amendments or supplements to the proxy statement Proxy Statement (and shall provide copies of any such written comments or for additional information requests to Investor) and will supply the Investors shall provide Investor with copies of all correspondence between the Company Company, its Subsidiaries or any of its their respective directors, officers, employees, investment bankers, financial advisors, attorneys, accountants or other advisors, agents or representatives, on the one hand, and the SEC or its staffthe staff of the SEC, on the other hand, with respect relating to the proxy statementProxy Statement. If at any time prior Notwithstanding anything to the special meeting of stockholders there shall occur any event thatcontrary herein, in the good faith judgment of the Company, after consulting with outside counsel, should be set forth in an amendment or supplement to the proxy statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement, in each case to the extent required by applicable Law in the good faith judgment of the Company, after consulting with outside counsel. The Investors shall cooperate with the Company in the preparation of the proxy statement and any amendment or supplement thereto. Prior prior to filing or mailing the proxy statement or making any other required filing with the SEC Proxy Statement (including or, in each case, any amendment or supplement thereto) or responding to any comments of the SEC or its staff with respect thereto, the Company shall provide the Investors and their representatives Investor with a reasonable opportunity to review and comment on such document or response. Any notification or communication by response and the Company pursuant to this Section 6.11 may be made shall incorporate in such document or response any reasonable comments provided by e-mail notwithstanding the provisions of Section 8.3Investor or its representatives.