Common use of Shareholders Meeting Clause in Contracts

Shareholders Meeting. (a) If required by the Articles of Incorporation and/or applicable law in order to consummate the Merger, the Company, acting through its Board of Directors, shall, in accordance with applicable law and its Articles of Incorporation and By-laws, and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1: (i) duly call, give notice of, convene and hold a special meeting of its shareholders (the "Special Meeting") as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the purpose of considering and taking action upon the approval of the Merger and the adoption of this Agreement; (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the "Proxy Statement") to be mailed to its shareholders, provided that no amendment or supplement to the Proxy Statement will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholders; and (iii) subject to Section 5.3(c) hereof, include in the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger and the adoption of this Agreement. (b) Parent promptly will provide the Company with the information concerning Parent and the Purchaser required to be included in the Proxy Statement. Parent shall vote, or cause to be voted, all of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of the approval of the Merger and the approval and adoption of this Agreement.

Shareholders Meeting. (a) If required by Subject to the Articles terms and conditions of Incorporation and/or applicable law this Agreement and unless this Agreement has been terminated in order to consummate the Mergeraccordance with Article VIII, the Company, acting through its Board of Directorsthe Company Board, shall, shall take all actions in accordance with applicable law and Law, its Articles of Incorporation and By-lawslaws and the rules of The Nasdaq Stock Market to promptly and duly fix a record date for, and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1: (i) duly call, give notice of, convene and hold a special meeting of its shareholders (the "Special Meeting") as promptly as reasonably practicable after the date of this Agreement, and not later than the 40th calendar day immediately following the acceptance for payment and purchase date of Shares by the Purchaser pursuant to mailing of the Offer Proxy Statement absent any legal restraint that prevents such action, the Company Meeting for the purpose of considering and taking action voting upon the approval Company Voting Proposal. Without limiting the generality of the foregoing, and subject to Section 6.1, the Company agrees that its obligations pursuant to this Section 6.5 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Acquisition Proposal. Subject to Section 6.1, the Company Board shall recommend adoption of the Company Voting Proposal by the shareholders of the Company and include such recommendation in the Proxy Statement. Except to the extent the Company Board has effected a Company Adverse Recommendation Change, the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall use reasonable best efforts to secure the vote of the shareholders of the Company required by the rules of The Nasdaq Stock Market or the RIBCA to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consulting with the Parent and considering in good faith Parent’s recommendation, may, adjourn or postpone the Company Meeting to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s shareholders (or that the information set forth therein is publicly available for a reasonable period of time so as to allow shareholders to become aware of such information) or, if as of the time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient affirmative votes to duly authorize the Company Voting Proposal. If as of the time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient affirmative votes to duly authorize the Company Voting Proposal, the Company shall, if requested to do so in writing by the Parent, adjourn or postpone the Company Meeting for up to 30 days. The parties agree that the affirmative vote for adoption of the Company Voting Proposal by the holders of a majority of the shares outstanding on the record date for the meeting of the Company’s shareholders (the “Company Meeting”) to consider the Company Voting Proposal, of (i) the Class A Common Stock and Class B Common Stock, voting together as a single class, and (ii) the Class B Common Stock, voting as a separate class (clauses (i) and (ii) together, the “Required Company Shareholder Vote”), is the only vote of the holders of any class or series of the Company’s capital stock or other securities necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the adoption of other transactions contemplated by this Agreement; (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable efforts (x) to obtain and furnish the information , except as may otherwise be required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the "Proxy Statement") to be mailed to its shareholders, provided that no amendment or supplement to the Proxy Statement will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholders; and (iii) subject to Section 5.3(c) hereof, include in the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger and the adoption of this AgreementLaw. (b) Parent promptly will provide the Company with the information concerning Parent and the Purchaser required to be included in the Proxy Statement. Parent shall vote, or cause to be voted, all of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of the approval of the Merger and the approval and adoption of this Agreement.

Shareholders Meeting. (a) If required by the Articles of Incorporation and/or applicable law in order to consummate the Merger, the Company, acting through its Board of Directorsthe Board, shall, in accordance with applicable law and its Articles of Incorporation and By-lawslaw, and following (i) acceptance for payment of Shares by the Purchaser pursuant subject to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination terms and conditions of this Agreement by Parent or the Company in accordance with Section 8.1Agreement: (ia) as soon as reasonably practicable, duly call, give notice of, convene and hold a an annual or special meeting of its shareholders (the "Special Shareholders' Meeting") as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the purpose of considering and taking action upon the approval of the Merger and the approval and adoption of this Agreement; (iib) except as permitted in Section 1.10(c) and 5.2 below, include in the Proxy Statement (as hereinafter defined) the recommendation of the Board that shareholders of the Company vote in favor of the approval of the Merger and the approval and adoption of this Agreement; (c) use reasonable efforts to obtain shareholder approval (subject to the Board, after having consulted with legal counsel, determining in good faith that the taking of such action would constitute a breach of the Board's fiduciary obligations under applicable law); (d) prepare and file with the SEC Securities and Exchange Commission ("SEC") a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable best efforts (x) to obtain and furnish the information required to be included by the SEC it in the Proxy Statement (as hereinafter defined) proxy or information statement and, after consultation with ParentPurchaser, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement statement, and cause a definitive proxy or information statement, including any amendment or supplement thereto (such proxy or information statement, together with any amendments or supplements thereto, the "Proxy Statement") to be mailed to its shareholders, provided that no amendment or supplement to shareholders at the Proxy Statement will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholdersearliest practicable time; and (iiie) subject to Section 5.3(c) hereof, include in incorporate into the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger written information provided by Purchaser concerning Purchaser and the adoption of this Agreement. (b) Parent promptly will provide the Company with the information concerning Parent and the Purchaser Acquisition Sub required to be included in the Proxy Statement. Parent The Company shall vote, not be responsible or cause liable for any untrue statement of a material fact or omission to state a material fact required to be votedstated in the Proxy Statement or necessary to make the statements therein, all in light of the Shares then owned circumstances under which they were made, not misleading, to the extent that any such untrue statement of a material fact or omission to state a material fact was made by it, the Company in reliance upon and in conformity with written information concerning Purchaser or any Acquisition Sub furnished to the Company by Purchaser specifically for use in the Proxy Statement. Purchaser agrees that the written information concerning Purchaser and Acquisition Sub provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of its other subsidiaries mailing thereof and affiliates in favor at the time of the approval meeting(s) of shareholders of the Merger and Company, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the approval and adoption statements therein, in light of this Agreementthe circumstances under which they were made, not misleading.

Shareholders Meeting. (a) If required by The Company will use reasonable best efforts to prepare and file preliminary proxy materials within 14 days following the Articles Initial Closing and shall use reasonable best efforts to hold a meeting of Incorporation and/or applicable law its shareholders (the “Shareholders Meeting”) not later than December 14, 2004, for the purpose, among others, of seeking approval of the Company’s shareholders for the issuance to the Investors of the Securities pursuant to the Transaction Documents (the “Proposal”). In connection therewith, the Company will use its reasonable best efforts to promptly prepare and file with the Commission proxy materials (including a proxy statement and form of proxy) for use at the Shareholders Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall promptly mail such proxy materials to the shareholders of the Company. The Company will comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the shareholders of the Company in connection with the Shareholders Meeting, and the Proxy Statement shall not, on the date of the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to shareholders or at the time of the Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to consummate make the Mergerstatements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Shareholders Meeting which has become false or misleading. (b) In furtherance of its obligations under Section 4.13(a), the Company, acting through its ’s Board of DirectorsDirectors shall recommend to the Company’s shareholders (and not revoke or amend such recommendation) that the shareholders vote in favor of and approve the Proposal and shall cause the Company to use its best efforts to solicit the approval of the shareholders for the Proposal. The Company is required to, shalland will take, in accordance with applicable law and its Articles of Incorporation and By-lawsBylaws, all action necessary to convene the Shareholders Meeting along the timeframe indicated herein to consider and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1: (i) duly call, give notice of, convene and hold a special meeting of its shareholders (the "Special Meeting") as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the purpose of considering and taking action vote upon the approval of the Merger and Proposal all in a manner to ensure that the adoption of this Agreement; (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the "Proxy Statement") to be mailed to its shareholders, provided that no amendment or supplement to the Proxy Statement Second Closing will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholders; and (iii) subject to Section 5.3(c) hereof, include in the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger and the adoption of this Agreementtimely occur. (b) Parent promptly will provide the Company with the information concerning Parent and the Purchaser required to be included in the Proxy Statement. Parent shall vote, or cause to be voted, all of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of the approval of the Merger and the approval and adoption of this Agreement.

Shareholders Meeting. (a) If required by the Articles of Incorporation and/or applicable law in order to consummate the Merger, the Company, acting through its Board of Directors, shall, in accordance with applicable law and its Articles of Incorporation and By-laws, and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1law: (i) duly call, give notice of, convene and hold a special meeting Special Meeting of its shareholders (the "Special Meeting") as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the purpose of considering and taking action upon the approval of the Merger and the adoption of this Agreement; (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable best efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the "Proxy Statement") to be mailed to its shareholders, provided that no amendment or supplement to the such Proxy Statement or information statement will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholders; andcounsel; (iii) subject to Section 5.3(c) hereof, include in the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger and the adoption of this Agreement; (iv) use its best efforts to solicit from holders of Shares proxies in favor of the Merger and shall take all other action necessary or, in the reasonable opinion of Parent, advisable to secure any vote or consent of shareholders required under California law to effect the Merger. (b) Parent promptly will provide the Company with the information concerning Parent and the Purchaser required to be included in the Proxy Statement. Parent shall vote, or cause to be voted, all of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates Subsidiaries or Affiliates controlled by Parent in favor of the approval of the Merger and the approval and adoption of this Agreement.

Shareholders Meeting. (a) If required by the Articles of Incorporation and/or applicable law in order Subject to consummate the MergerSection 8.1, the Company, acting through its Board of Directors, shallCompany will take, in accordance with applicable law Law and its Articles memorandum and articles of Incorporation and By-lawsassociation, and following (i) acceptance for payment of Shares by the Purchaser pursuant all actions necessary to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1: (i) duly call, give notice of, convene and hold a special general meeting of its shareholders (the "Special “Shareholders’ Meeting"”) as promptly as reasonably practicable following after the acceptance for payment SEC confirms that it has no further comments on the Schedule 13E-3 and purchase of Shares by the Purchaser pursuant Proxy Statement to the Offer for the purpose of considering consider and taking action vote upon the approval and authorization of the Merger this Agreement and the adoption Plan of this Agreement; Merger. The Company may adjourn or postpone the Shareholders’ Meeting to allow reasonable time (i) for the filing and mailing of any supplement or amendment to the disclosure, which the Company has determined in good faith after consultation with its outside legal counsel is necessary or advisable under applicable Law, and (ii) prepare for such supplemental or amended disclosure to be disseminated to and file with reviewed by the SEC a preliminary proxy or information statement relating Company’s shareholders prior to the Merger Company Shareholders’ Meeting, and this Agreement and use its commercially reasonable efforts the Company may adjourn or postpone the Shareholders’ Meeting if, as of the time for which the Shareholders’ Meeting is originally scheduled (x) to obtain and furnish the information required to be included by the SEC as set forth in the Proxy Statement Statement), there are insufficient Shares represented (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made either in person or by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the "Proxy Statement"proxy) to be mailed constitute a quorum necessary to its shareholders, provided that no amendment conduct the business of the Shareholders’ Meeting or supplement to the Proxy Statement will be made by if the Company without consultation with Parent and its counsel and (y) reasonably deems necessary to obtain the necessary approvals of the Merger and this Agreement by its shareholders; and (iii) subject to Section 5.3(c) hereof, include in the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger and the adoption of this Agreementsolicit more proxies. (b) Parent promptly will provide Subject to Section 6.2 and Section 8.1, the Company with shall include the information concerning Parent and the Purchaser required to be included Company Recommendation in the Proxy StatementStatement and use its reasonable best efforts to obtain the Requisite Company Vote. Parent In the event that subsequent to the date hereof, the board of directors of the Company makes a Company Adverse Recommendation in accordance with Section 6.2(c) or Section 6.2(d), the Company shall vote, or cause not be required to be voted, all submit this Agreement to the holders of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of for the approval of at the Merger and the approval and adoption of Shareholders’ Meeting in accordance with this AgreementSection 6.4.

Shareholders Meeting. (a) If Subject to Section 2.7, if approval of the shareholders of the Company is required by under the Articles of Incorporation and/or applicable law in order MBCA to consummate the Merger, the Company, acting through its Board of Directors, shall, in accordance with applicable law and its Articles of Incorporation and By-laws, and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1: (ia) duly call, give notice of, convene and hold a special meeting of its shareholders (the "Special Meeting") as As promptly as practicable following the acceptance for payment Acceptance Time and purchase the expiration of Shares any “subsequent offering period” provided by the Purchaser pursuant to the Offer for the purpose of considering and taking action upon the approval of the Merger and the adoption of in accordance with this Agreement; (ii) , if applicable, and in any event within 10 Business Days following the Acceptance Time or the expiration of any “subsequent offering period,” as applicable, the Company shall prepare and file with the SEC a preliminary proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required solicitation materials or information, the “Proxy Statement”) relating to the Merger and this Agreement Agreement, which shall include, among other things, the Fairness Option, except in the case of a Change in Company Recommendation; provided, that Parent, Purchaser and use its commercially their counsel shall be given a reasonable efforts (x) opportunity to obtain and furnish the information required to be included by the SEC in review the Proxy Statement (as hereinafter defined) andbefore it is filed with the SEC and the Company shall give due consideration to all reasonable additions, after consultation with deletions or changes thereto suggested by Parent, to respond promptly to any comments made by Purchaser and their counsel with the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the "Proxy Statement") to be mailed to its shareholders, provided intention that no amendment or supplement to the Proxy Statement will be made by in a form ready to print and mail to the shareholders of the Company without consultation with Parent and its counsel and (y) as promptly as practicable following the time at which the SEC confirms it has no further comments. Subject to obtain the necessary approvals provisions of Section 6.4(c), the Merger and this Agreement by its shareholders; and (iii) subject to Section 5.3(c) hereof, Company shall include in the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger and the adoption of this AgreementAgreement in accordance with the MBCA. The Company shall use commercially reasonable efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes thereto suggested by Parent, Purchaser and their counsel. The Company, Parent and Purchaser agree to correct promptly any information in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable law, and the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as contemplated by Section 2.6(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff). (b) Parent promptly will provide The Company, acting through (or upon authorization by) the Company Board of Directors (or a committee thereof), shall, in accordance with and subject to the requirements of the Company Governing Documents and applicable law: (i) as promptly as practicable following the Acceptance Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, duly set a record date for, call and give notice of a special meeting of its shareholders (the “Special Meeting”) for the purpose of considering and taking action upon this Agreement (with the information concerning Parent record date and meeting date set in consultation with Purchaser), and (B) as promptly as practicable following the Acceptance Time and the expiration of any “subsequent offering period” provided by Purchaser required pursuant to and in accordance with this Agreement, if applicable, convene and hold the Special Meeting; (ii) cause the definitive Proxy Statement to be included in mailed to its shareholders; and (iii) use commercially reasonable efforts to secure any approval by the Proxy Statement. shareholders of the Company that is required by the Company Governing Documents and the MBCA and any other applicable law to effect the Merger. (c) Parent shall vote, or cause to be voted, at the Special Meeting or any postponement or adjournment thereof, or pursuant to a written consent in lieu of meeting, all of the Shares then owned by it, the Purchaser or any of its their other subsidiaries Subsidiaries and affiliates in favor of the approval of the Merger and the approval and adoption of this AgreementAgreement and Parent shall deliver or provide, or cause to be delivered or provided, in the capacity as a shareholder of the Company or otherwise, any other approvals that are required by the MBCA and any other applicable law to effect the Merger.

Shareholders Meeting. (a) If required by the Articles of Incorporation and/or applicable law in order to consummate the Merger, the The Company, acting through its Board of Directors, shall, in accordance with applicable law and its Articles of Incorporation and By-laws, and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1law: (i) duly call, give notice of, convene and hold a special meeting (or the annual meeting) of its shareholders (the "Special Meeting") as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the purpose of considering and taking action upon the approval of the Merger this Agreement and the adoption of this AgreementMerger; (ii) prepare and and, after consultation with Mergerco, file with the SEC Securities and Exchange Commission (the "SEC") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable best efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with ParentMergerco, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the "Proxy Statement") ), to be mailed to its shareholders, provided that no amendment or supplement to the Proxy Statement will be made by the Company without consultation with Parent Mergerco and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholders; (iii) promptly notify Mergerco of the receipt of the comments of the SEC and of any request from the SEC for amendments or supplements to the preliminary proxy statement or the definitive Proxy Statement or for additional information, and will promptly supply Mergerco with copies of all 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 or the Merger; (iv) promptly inform Mergerco if at any time prior to the Special Meeting any event should occur which is required by applicable law to be set forth in an amendment of, or a supplement to, the Proxy Statement, in which case, the Company, with the cooperation of Mergerco, will, upon learning of such event, promptly prepare and mail such amendment or supplement; provided, that prior to such mailing, the Company shall consult with Mergerco with respect to such amendment or supplement and shall afford Mergerco reasonable opportunity to comment thereon; (v) notify Mergerco at least 24 hours prior to the mailing of the Proxy Statement, or any amendment or supplement thereto, to the shareholders of the Company; and (iiivi) subject to Section 5.3(c) hereofthe fiduciary obligations of the Board of Directors under applicable law as advised by independent counsel, include in the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger this Agreement and the adoption of this AgreementMerger. (b) Parent promptly will provide The Company, if required, and Mergerco, if required, shall prepare and file concurrently with the filing of the preliminary proxy statement, a Statement on Schedule 13E-3 ("Schedule 13E-3") with the SEC. If at any time prior to the Special Meeting any event should occur which is required by applicable law to be set forth in an amendment of, or supplement to, the Schedule 13E-3, the Company with or Mergerco, as the information concerning Parent and the Purchaser required to be included in the Proxy Statement. Parent case may be, shall vote, file such amendments or cause to be voted, all of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of the approval of the Merger and the approval and adoption of this Agreementsupplements.

Shareholders Meeting. (a) If required by the Articles of Incorporation and/or applicable law in order to consummate the Merger, the The Company, acting through its Board of Directorsthe Company Board, shall, shall take all actions in accordance with applicable law and its Articles of Incorporation and By-lawslaw, and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1: (i) Charter Documents and the rules of The Nasdaq Stock Market to promptly and duly call, give notice of, convene and hold a special meeting of its shareholders (the "Special Meeting") as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer Company Meeting for the purpose of considering and taking action voting upon the Company Voting Proposal. Subject to Section 6.1, (i) the Special Committee and the Company Board shall recommend approval of the Merger and the adoption of this Agreement; (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable efforts (x) to obtain and furnish the information required to be included Company Voting Proposal by the SEC shareholders of the Company and include such recommendation in the Proxy Statement and (as hereinafter definedii) andthe Special Committee and the Company Board shall not withhold, after consultation with withdraw or modify in a manner adverse to Parent, or publicly propose or resolve to respond promptly withhold, withdraw or modify in a manner adverse to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statementParent, including any amendment or supplement thereto (the "Proxy Statement") to be mailed to its shareholders, provided that no amendment or supplement to the Proxy Statement will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholders; and (iii) subject to Section 5.3(c) hereof, include in the Proxy Statement the recommendation of the Special Committee or the Company Board of Directors that the Company’s shareholders of the Company vote in favor of the Company Voting Proposal. The Company shall take all action that is both reasonable and lawful to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the vote or consent of the shareholders of the Company required by the rules of The Nasdaq Stock Market or the NJBCA to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, with the prior approval of the Merger and the adoption of this Agreement. (b) Parent promptly will provide Parent, may adjourn or postpone the Company with Meeting to the information concerning Parent and extent necessary to ensure that any required supplement or amendment to the Purchaser required Proxy Statement is provided to be included the Company’s shareholders or, if as of the time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement. Parent shall vote, ) there are insufficient shares of Company Common Stock represented (either in Person or cause by proxy) to be voted, all constitute a quorum necessary to conduct the business of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of the approval of the Merger and the approval and adoption of this AgreementCompany Meeting.

Shareholders Meeting. (a) If required by the Articles of Incorporation and/or applicable law in order to consummate the Merger, the Company, acting through its Board of Directors, shall, in accordance with applicable law and its Articles of Incorporation and By-laws, and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the The Company in accordance with Section 8.1: (i) duly call, give notice of, convene and hold shall call a special meeting of its shareholders (the "Special Meeting") shareholders, as promptly as practicable following the acceptance Closing, but in no event shall the meeting be later than December 30, 2010, to vote on a proposal (the “Shareholder Proposal”) to approve (i) the conversion of the Preferred Shares and the Non-Voting Preferred Shares into Common Stock for payment purposes of Rule 5635 of the NASDAQ Stock Market Rules, and purchase (ii) authorizing a new class of Shares by the Purchaser pursuant Non-Voting Common Stock to the Offer allow for the purpose exercise of considering and taking action upon the Warrants (such approval of the Merger and Shareholder Proposal, “Shareholder Approvals”). The Board of Directors of the adoption Company shall recommend to the Company’s shareholders that such shareholders vote in favor of this Agreement; (ii) the Shareholder Proposal. In connection with such meeting, the Company shall promptly prepare and file (but in no event more than thirty (30) days after the Closing Date) with the SEC Commission a preliminary proxy or information statement relating to the Merger and this Agreement and statement, shall use its commercially reasonable best efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made of the Commission or its staff and to cause a definitive proxy statement related to such shareholders’ meeting to be mailed to the Company’s shareholders not more than fifteen (15) business days after clearance thereof by the Commission, and shall use its reasonable best efforts to solicit proxies for such Shareholder Approval. The Company shall notify each Purchaser promptly of the receipt of any comments from the SEC or its staff with respect to the preliminary proxy or information statement and cause of any request by the SEC or its staff for amendments or supplements to such proxy statement or for additional information (but the Company shall not provide any Purchaser with any material, nonpublic information, unless requested by such Purchaser and pursuant to a definitive proxy or information statement, including written agreement regarding the confidentiality and use of such information). If at any amendment or supplement thereto (the "Proxy Statement") time prior to such shareholders’ meeting there shall occur any event that is required to be mailed to its shareholders, provided that no set forth in an amendment or supplement to the Proxy Statement will be made by proxy statement, the Company without consultation with Parent shall as promptly as practicable prepare and mail to its counsel and (y) to obtain shareholders such an amendment or supplement. In the necessary approvals of the Merger and this Agreement by its shareholders; and (iii) subject to Section 5.3(c) hereofevent that Shareholder Approval is not obtained at such shareholder meeting, include in the Proxy Statement the recommendation of the Company shall include a proposal to approve (and the Board of Directors that shall recommend approval of) such proposal at a meeting of its shareholders of the Company vote in favor of the approval of the Merger and the adoption of this Agreement. (b) Parent promptly will provide the Company with the information concerning Parent and the Purchaser required to be included held no less than once in each subsequent six-month period beginning on the Proxy Statement. Parent shall vote, or cause to be voted, all date of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of the such shareholder meeting until such approval of the Merger and the approval and adoption of this Agreementis obtained.

Shareholders Meeting. (a) If Subject to Section 2.9(d), if required by the Articles of Incorporation and/or applicable law Law in order to consummate the Merger, the Company, acting through its Board of Directorsthe Post-Acceptance Board, shall, in accordance with applicable law and its Articles of Incorporation and By-laws, and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1Law: (i) duly call, give notice of, convene and hold a special meeting of its shareholders the Company Shareholders (the "Special Shareholders Meeting") ), as promptly as practicable following the acceptance for payment and purchase of Shares shares of Company Common Stock by the Purchaser Sub pursuant to the Offer Offer, for the purpose of considering and taking action upon obtaining the approval of the Merger and the adoption of this Agreement; (ii) prepare and file with the SEC a preliminary proxy statement or information statement (the "Proxy Statement") relating to the Merger and this Agreement Agreement, and use its commercially reasonable best efforts (x) to obtain and furnish the information required to be included by the SEC applicable Law in the preliminary Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement Proxy Statement, and (y) to cause a definitive proxy or information statement, including the Proxy Statement and any amendment or supplement thereto (the "Proxy Statement") thereto, to be mailed to the Company Shareholders, provided, that the Company (1) will promptly notify Parent of its shareholdersreceipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements of the Proxy Statement or for additional information; (2) will promptly provide Parent with copies of all correspondence between the Company or any of its representatives, provided that no amendment on the one hand, and the SEC or supplement its staff, on the other hand, with respect to the Proxy Statement or the Merger and (3) will be made by not amend or supplement the Company Proxy Statement without consultation first consulting with Parent and its counsel counsel, and (yz) to obtain the necessary approvals of the Merger and this Agreement by its shareholders; andshareholders to the extent required by the CGCL; (iii) subject prepare and revise the Proxy Statement so that, at the date mailed to Section 5.3(cCompany shareholders and at the time of the Shareholders Meeting, the Proxy Statement will (x) hereofnot contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order that the statements made therein, in light of the circumstances under which they are made, are not misleading (except that the Company shall not be responsible under this clause (iii) with respect to statements made therein based on information supplied by Parent or Sub expressly for inclusion in the Proxy Statement), and (y) comply in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder; (iv) include in the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company that the Company Shareholders vote in favor of the approval of the Merger and the adoption of this Agreement.; and (bv) Parent promptly will provide solicit proxies from the Company with the information concerning Parent and the Purchaser required to be included in the Proxy Statement. Parent shall vote, or cause to be voted, all of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates Shareholders in favor of the approval of the Merger and the approval and adoption of this Agreement and take all other action necessary, or in the reasonable judgment of Parent, helpful to secure the vote or consent of such holders required by the CGCL or this Agreement to effect the Merger. (b) Parent shall furnish to the Company such information concerning itself and Sub, for inclusion in the Proxy Statement, as may be requested by the Company and required to be included in the Proxy Statement. Such information provided by Parent and Sub in writing expressly for inclusion in the Proxy Statement will not, at the date the Proxy Statement is filed with the SEC, and mailed to Company shareholders and (including any corrections or modifications made by Parent or Sub to such information) at the time of the Shareholders Meeting, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order that the statements made therein, in light of the circumstances under which they were made, are not misleading. (c) Parent shall vote or cause to be voted all shares of the Company Common Stock purchased pursuant to the Offer and all other shares beneficially owned by Parent or Sub in favor of adoption of the Merger and the Merger Agreement. (d) In the event that Parent or Sub, collectively, shall acquire at least 90% of the issued and outstanding shares of Company Common Stock, the Company, Parent and Sub shall take all appropriate and necessary action to cause the Merger to become effective as soon as practicable after the expiration or termination of the Offer, without a meeting of shareholders of the Company, in accordance with Section 1110 of the CGCL.

Shareholders Meeting. (a) If the adoption of this Agreement and the Plan of Merger by the holders of Company Common Stock is required by the Articles of Incorporation and/or applicable law Law in order to consummate the Merger, the Company, acting through its Board the Company’s board of Directorsdirectors, shall, as promptly as reasonably practicable following the Acceptance Date, in accordance with applicable law and its Articles of Incorporation and By-laws, and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1Law: (i) establish a record date (which shall be as promptly as reasonably practicable following the Acceptance Date) for, duly call, give notice of, convene and hold a special meeting of its shareholders (the "“Special Meeting"”) as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the purpose of considering and taking action upon the approval of the Merger this Agreement and the adoption Plan of this AgreementMerger; (ii) state in the notice of the Special Meeting that a resolution to adopt this Agreement and the Plan of Merger will be considered at the Special Meeting; (iii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and shall (A) use its commercially reasonable best efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made by of the SEC with respect to the preliminary proxy or information statement and to cause the SEC to confirm that it has no comments or no further comments, as the case may be, on the proxy statement, (B) promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements to the proxy statement, and shall provide Parent with copies of all correspondence relating to the proxy statement between it and its representatives, on the one hand, and the SEC, on the other hand, (C) prior to the filing of the proxy statement (or any amendment or supplement thereto) with the SEC or the dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect thereto, provide Parent a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response) and give good faith consideration to Parent’s comments on such document or response, (D) cause a definitive proxy or information statement, including any amendment or supplement thereto statement (the "“Proxy Statement"”) to be mailed to its shareholdersshareholders and (E) if at any time prior to the Special Meeting any information relating to the Offer, provided that no the Merger, the Company, Parent, Purchaser or any of their respective Affiliates, directors or officers 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 will shall not contain any untrue statement of a material fact or omit to state any material fact required to be made by stated therein or necessary in order to make the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals statements therein, in light of the Merger circumstances under which they are made, not misleading, file with the SEC and this Agreement disseminate to the holders of Company Common Stock an appropriate amendment or supplement describing such information, as and to the extent required by its shareholders; andapplicable Law or any applicable rule or regulation of any stock exchange; (iiiiv) subject to Section 5.3(c) hereofthe fiduciary duties of the Company’s board of directors, include in the Proxy Statement the recommendation of the Company Board of Directors Recommendations that shareholders of the Company Shareholders vote in favor of the approval of the Merger this Agreement and the adoption Plan of this AgreementMerger; and (v) include in the Proxy Statement the opinion of the Company’s Financial Advisor referred to in Section 4.22. (b) Parent promptly agrees that it will provide the Company with the information concerning Parent and the Purchaser required to be included in the Proxy Statement. Parent shall vote, or cause to be voted, all of the Shares shares of Company Common Stock then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of the approval of the Merger and the approval and adoption of this AgreementAgreement and the Plan of Merger.

Shareholders Meeting. (a) If As promptly as practicable, and in any event within forty-five (45) days after the date hereof, the Company shall prepare and mail to the shareholders of the Company a proxy statement relating to the Company Shareholder Approval and containing all information that is required by applicable Legal Requirements (the Articles “Proxy Statement”), and any amendments or supplements thereto as may be reasonably necessary to ensure that the Proxy Statement, as amended or supplemented, does not at any time on or prior to the Company Shareholders’ Meeting contain any untrue statement of Incorporation and/or applicable law a material fact or omit to state a material fact required to be stated therein or necessary in order to consummate make the Mergerstatements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, prior to mailing the Proxy Statement or any amendment or supplement thereto, the CompanyCompany (i) shall provide Parent an opportunity to review and comment on such document and (ii) shall include in such document all comments reasonably proposed by Parent. (b) Subject to the other provisions of this Agreement and unless there has been a Company Adverse Recommendation, acting through its Board of Directors, the Company shall, as promptly as reasonably practicable, and in any event within seventy-five (75) days after the date hereof, take all action necessary, including as required by and in accordance with applicable law and its the MBCA, Company Articles of Incorporation and By-laws, and following (i) acceptance for payment of Shares by the Purchaser pursuant Company Bylaws to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1: (i) duly call, give notice of, convene and hold a special meeting of its shareholders (the "Special “Company Shareholders’ Meeting"”) as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the sole purpose of considering obtaining the Company Shareholder Approval. The Company and taking action upon Company Board will use their reasonable best efforts to obtain from its shareholders the votes in favor of the approval of this Agreement required by the Merger MBCA, including by recommending that its shareholders vote to approve this Agreement, and the adoption of this Agreement; Company and Company Board will not withhold, withdraw, qualify or adversely modify (iior publicly propose or resolve to withhold, withdraw, qualify or adversely modify) prepare and file with the SEC a preliminary proxy or information statement relating Company Board’s recommendation to the Merger and this Agreement and use its commercially reasonable efforts (x) to obtain and furnish Company’s shareholders that the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the "Proxy Statement") to be mailed to its shareholders, provided that no amendment or supplement to the Proxy Statement will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholders; and (iii) subject to Section 5.3(c) hereof, include in the Proxy Statement the recommendation of the Company Board of Directors that Company’s shareholders of the Company vote in favor of the approval of this Agreement (a “Company Adverse Recommendation”). However, if, prior to the Merger and the adoption of this Agreement. (b) Parent promptly will provide time the Company Shareholder Approval is obtained, the Company Board, after consultation with the information concerning Parent and the Purchaser required to be included outside counsel, determines in the Proxy Statement. Parent shall votegood faith it is reasonably likely that to, or cause to be votedcontinue to, all of the Shares then owned by it, the Purchaser or any recommend this Agreement to its shareholders would result in a violation of its other subsidiaries and affiliates in favor of fiduciary duties under applicable Legal Requirements, then the approval of the Merger and the approval and adoption of this AgreementCompany Board may make a Company Adverse Recommendation or publicly propose or resolve to make a Company Adverse Recommendation.

Shareholders Meeting. (a) If required by The Company will use reasonable best efforts to prepare and file preliminary proxy materials within 14 days following the Articles Initial Closing and shall use reasonable best efforts to hold a meeting of Incorporation and/or applicable law its shareholders (the "Shareholders Meeting") not later than December 14, 2004, for the purpose, among others, of seeking approval of the Company's shareholders for the issuance to the Investors of the Securities pursuant to the Transaction Documents (the "Proposal"). In connection therewith, the Company will use its reasonable best efforts to promptly prepare and file with the Commission proxy materials (including a proxy statement and form of proxy) for use at the Shareholders Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall promptly mail such proxy materials to the shareholders of the Company. The Company will comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the "Proxy Statement") and any form of proxy to be sent to the shareholders of the Company in connection with the Shareholders Meeting, and the Proxy Statement shall not, on the date of the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to shareholders or at the time of the Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to consummate make the Mergerstatements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Shareholders Meeting which has become false or misleading. (b) In furtherance of its obligations under Section 4.13(a), the Company, acting through its 's Board of DirectorsDirectors shall recommend to the Company's shareholders (and not revoke or amend such recommendation) that the shareholders vote in favor of and approve the Proposal and shall cause the Company to use its best efforts to solicit the approval of the shareholders for the Proposal. The Company is required to, shalland will take, in accordance with applicable law and its Articles of Incorporation and By-lawsBylaws, all action necessary to convene the Shareholders Meeting along the timeframe indicated herein to consider and following (i) acceptance for payment of Shares by the Purchaser pursuant to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination of this Agreement by Parent or the Company in accordance with Section 8.1: (i) duly call, give notice of, convene and hold a special meeting of its shareholders (the "Special Meeting") as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the purpose of considering and taking action vote upon the approval of the Merger and Proposal all in a manner to ensure that the adoption of this Agreement; (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the "Proxy Statement") to be mailed to its shareholders, provided that no amendment or supplement to the Proxy Statement Second Closing will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholders; and (iii) subject to Section 5.3(c) hereof, include in the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger and the adoption of this Agreementtimely occur. (b) Parent promptly will provide the Company with the information concerning Parent and the Purchaser required to be included in the Proxy Statement. Parent shall vote, or cause to be voted, all of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of the approval of the Merger and the approval and adoption of this Agreement.

Shareholders Meeting. (a) If required by the Articles of Incorporation and/or applicable law in order to consummate the Merger, the Company, acting through its Board of Directorsthe Board, shall, in accordance with applicable law and its Articles of Incorporation and By-lawslaw, and following (i) acceptance for payment of Shares by the Purchaser pursuant subject to the Offer or (ii) the expiration of the Offer without the Purchaser purchasing any Shares thereunder, in the case of either clause (i) or (ii), without the termination terms and conditions of this Agreement by Parent or the Company in accordance with Section 8.1Agreement: (ia) as soon as reasonably practicable, duly call, give notice of, convene and hold a an annual or special meeting of its shareholders (the "Special Shareholders' Meeting") as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the purpose of considering and taking action upon the approval of the Merger and the (b) except as permitted in Section 1.10(c) and 5.2 below, include in the Proxy Statement (as hereinafter defined) the recommendation of the Board that shareholders of the Company vote in favor of the approval of the Merger and the approval and adoption of this Agreement; (iic) use reasonable efforts to obtain shareholder approval (subject to the Board, after having consulted with legal counsel, determining in good faith that the taking of such action would constitute a breach of the Board's fiduciary obligations under applicable law); (d) prepare and file with the SEC Securities and Exchange Commission ("SEC") a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable best efforts (x) to obtain and furnish the information required to be included by the SEC it in the Proxy Statement (as hereinafter defined) proxy or information statement and, after consultation with ParentPurchaser, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement statement, and cause a definitive proxy or information statement, including any amendment or supplement thereto (such proxy or information statement, together with any amendments or supplements thereto, the "Proxy Statement") to be mailed to its shareholders, provided that no amendment or supplement to shareholders at the Proxy Statement will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its shareholdersearliest practicable time; and (iiie) subject to Section 5.3(c) hereof, include in incorporate into the Proxy Statement the recommendation of the Company Board of Directors that shareholders of the Company vote in favor of the approval of the Merger written information provided by Purchaser concerning Purchaser and the adoption of this Agreement. (b) Parent promptly will provide the Company with the information concerning Parent and the Purchaser Acquisition Sub required to be included in the Proxy Statement. Parent The Company shall vote, not be responsible or cause liable for any untrue statement of a material fact or omission to state a material fact required to be votedstated in the Proxy Statement or necessary to make the statements therein, all in light of the Shares then owned circumstances under which they were made, not misleading, to the extent that any such untrue statement of a material fact or omission to state a material fact was made by it, the Company in reliance upon and in conformity with written information concerning Purchaser or any Acquisition Sub furnished to the Company by Purchaser specifically for use in the Proxy Statement. Purchaser agrees that the written information concerning Purchaser and Acquisition Sub provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of its other subsidiaries mailing thereof and affiliates in favor at the time of the approval meeting(s) of shareholders of the Merger and Company, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the approval and adoption statements therein, in light of this Agreementthe circumstances under which they were made, not misleading.