Common use of Special Meeting; Proxy Statement Clause in Contracts

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Merger, the Company, acting through its Board, shall, in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETING") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if If required by applicable Law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law, its Certificate of Incorporation and By-Laws: (Ai) as promptly as practicable following the acceptance for payment and purchase of Shares by Purchaser pursuant to the Offer duly call, give notice of, convene and hold a special meeting of its stockholders shareholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and the approval and adoption of this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and (x) obtain and furnish the information required to be included by the SEC therein in the Proxy Statement (as hereinafter defined) and, after consultation with PurchaserParent, 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 amendments amendment or supplements supplement thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders shareholders at the earliest practicable date, ; provided that no amendments amendment or supplements supplement to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counselcounsel and (y) use its reasonable best efforts to obtain the necessary approvals of the Merger and this Agreement by its shareholders; and (iii) unless this Agreement has been terminated in accordance with Article VII, subject to its rights pursuant to Section 5.5, include in the Proxy Statement the recommendation of its Board of Directors that shareholders of the Company vote in favor of the approval of the Merger and the approval and adoption of this Agreement. (b) Purchaser Parent shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, Purchaser or Merger Sub any of its other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) aboveanything else herein or in this Section 5.3, in the event that Parent, Purchaser and Merger Sub any other Subsidiaries of Parent shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% a number of the outstanding Sharesshares of each class of capital stock of the Company, pursuant to the Offer or otherwise, sufficient to enable Purchaser or the Company to cause the Merger to become effective under applicable Law without a meeting of shareholders of the Company, the parties hereto shall, subject to Article VI hereofVI, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the consummation of such acquisition, without a meeting of stockholders shareholders of the Company, in accordance with Section 253 905 of the DGCLNYBCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to following the Offer to satisfy execution of this Agreement (but in any event, in the Minimum Condition, if required by applicable Law in order to consummate the Mergercase of Section 7.01(b) within 10 business days), the Company, acting through its Board, shall, in accordance with applicable Law: (Aa) duly call, give notice of, convene and (unless this Agreement has been terminated) hold a special meeting of its stockholders (the "SPECIAL MEETING") Special Meeting" for the purposes of considering and taking action upon the approval and adoption of this Agreement and the Merger and this Agreement;Transactions, including adjourning such meeting for up to ten (10) business days to obtain such approval: (Bi) subject use reasonable best efforts to solicit the approval of this Agreement by the stockholders of the Company, (ii) except to the extent that the Board shall have withdrawn or modified its approval or recommendation of this Agreement as permitted by Section 4.87.03, declare advisable include in the Proxy Statement the Board's declaration of the advisability of this Agreement and recommend its recommendation to its the stockholders of the Company that they adopt this Agreement and approve the Merger and adopt this AgreementTransactions, and shall include disclosure regarding the approval of the Company's Board;; and (Ciii) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i7.01(a) shall not be affected by the commencement, public proposal, public disclosure or other communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; andAcquisition Proposal. (iib) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger Transactions and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with PurchaserParent, respond as promptly as reasonably practicable to any comments made by the SEC with respect to the preliminary proxy statement (including filing as promptly as reasonably practicable any amendments or information statement supplements thereto necessary to be filed in response to any such comments or as required by Law), use its reasonable best efforts to have the SEC confirm that it has no further comments and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), to be mailed to its stockholders at the earliest practicable datedate after the date that the SEC confirms it has no further comments, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.; and

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient following the purchase of Shares pursuant to the Offer to satisfy that satisfies the Minimum Condition, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETING"“Special Meeting”) for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval approvals of the Company's Board’s Board and the Special Committee; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board or any committee thereof of its such Board’s or committee’s approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), “Proxy Statement”) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or it, Merger Sub or any of Purchaser’s other subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Purchaser, Merger Sub and any other subsidiaries of Purchaser shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if If required by applicable Law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law, its Certificate of Incorporation and By-laws: (Ai) as promptly as practicable following the acceptance for payment and purchase of Shares by Purchaser pursuant to the Offer duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and the approval and adoption of this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and (x) obtain and furnish the information required to be included by the SEC therein in the Proxy Statement (as hereinafter defined) and, after consultation with PurchaserParent, 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 amendments amendment or supplements supplement thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, ; provided that no amendments amendment or supplements supplement to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counselcounsel and (y) use its reasonable best efforts to obtain the necessary approvals of the Merger and this Agreement by its stockholders; and (iii) unless this Agreement has been terminated in accordance with Article VII, subject to its rights pursuant to Section 5.5, include in the Proxy Statement the recommendation of its Board of Directors that stockholders of the Company vote in favor of the approval of the Merger and the approval and adoption of this Agreement. (b) Purchaser Parent shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, Purchaser or Merger Sub any of its other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) aboveanything else herein or in this Section 5.3, in the event that Parent, Purchaser and Merger Sub any other Subsidiaries of Parent shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% a number of the outstanding Sharesshares of each class of capital stock of the Company, pursuant to the Offer or otherwise, sufficient to enable Purchaser or the Company to cause the Merger to become effective under applicable Law without a meeting of stockholders of the Company, the parties hereto shall, at the request of Parent and subject to Article VI hereofVI, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the consummation of such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. Adoption of ---------------------------------------------- Agreement. --------- (a) As The Company shall: (i) as promptly as practicable after Purchaser following the execution and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Conditiondelivery of this Agreement, if required by applicable Law in order to consummate the Merger, the Company, acting through its Board, shall, establish a record date in accordance with applicable Law: the Company Organizational Documents and the BCL (Athe "Record Date") and ----------- duly call, give notice of, convene and hold a special meeting of its stockholders the Company's shareholders (together with all adjournments or postponements thereof, the "SPECIAL MEETINGSpecial Meeting") as soon as practicable after the date --------------- hereof for the purposes purpose of considering and taking action upon this Agreement and the approval and adoption of the Merger and this AgreementMerger; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) as promptly as practicable following the date hereof, prepare and file cause to be filed with the SEC a preliminary proxy or information statement Proxy Statement relating to the Merger and this Agreement and obtain and furnish the information required matters to be included submitted to the Company's shareholders at the Special Meeting. The Company shall use its reasonable best efforts to have the Proxy Statement "cleared" by the SEC therein SEC's staff and, after consultation with Purchaseras promptly as practicable thereafter, respond promptly to any comments made by cause the SEC with respect to the preliminary proxy or information statement and cause a Proxy Statement, in definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT")form, to be mailed to its stockholders at the earliest Company's shareholders in accordance with Regulation 14A under the Exchange Act, the Company Organizational Documents and the BCL. As promptly as practicable dateafter receipt thereof, provided that no the Company shall provide Parent with copies of all written comments and advise Parent of any oral comments with respect to the Proxy Statement received from the SEC's staff. The Company shall provide Parent with a reasonable opportunity to review and comment on all proposed amendments or and supplements to the Proxy Statement prior to filing the same with the SEC, and will provide Parent with a true and complete copy of all such filings made with the SEC; (iii) include in the Proxy Statement (A) the opinion of the Financial Advisor referred to in Section 4.24 and (B) the recommendation of the Company Board of Directors (and the Special Committee) that shareholders of the Company vote in favor of the adoption of this Agreement (the "Company Recommendation"), unless, in the case of ---------------------- the foregoing clause (B), in the good-faith judgment of the Company Board of Directors (and the Special Committee), after consultation with outside legal counsel, the inclusion of the Company Recommendation would be made inconsistent with its fiduciary duties under applicable law; and (iv) use all reasonable efforts to solicit from shareholders proxies in favor of the adoption of this Agreement and take all actions reasonably necessary or, in the reasonable opinion of Parent, advisable to secure the approval of shareholders required by the BCL, the Company without prior consultation with Purchaser Organizational Documents and its counselany other applicable law to effect the Merger. (b) Purchaser Parent shall votefurnish all information concerning it as may reasonably be requested by the Company in connection with the actions required to be taken by the Company under Section 7.1(a)(ii) and the preparation and filing of the Proxy Statement and shall use its reasonable best efforts to have the Proxy Statement "cleared" by the SEC's staff. Parent shall vote any shares of the Company beneficially owned by it, or with respect to which it has the power (by agreement, proxy or otherwise) to vote or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the adoption of this Agreement and approval and adoption of the Merger and this Agreementat the Special Meeting. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to Following the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Mergerexecution of this Agreement, the Company, acting through its Board, shall, in accordance with applicable Law: (Aa) with reasonable promptness, duly call, give notice of, convene and (unless this Agreement has been terminated) hold a special meeting of its stockholders (the "SPECIAL MEETING"“Special Meeting”) for the purposes of considering and taking action upon the approval and adoption of this Agreement and, to the Merger extent required, the Transactions, including adjourning such meeting for up to ten (10) business days to obtain such approval. Except to the extent that the Board shall have withdrawn or modified its approval or recommendation of this Agreement as permitted by Section 7.03, the Company shall (i) use commercially reasonable efforts to solicit the approval of this Agreement and, to the extent required, the Transactions by the stockholders of the Company and (ii) include in the Proxy Statement the Board’s declaration of the advisability of this Agreement; (B) subject Agreement and its recommendation to Section 4.8, declare advisable and recommend to its the stockholders of the Company that they adopt this Agreement and, to the extent required, approve the Merger and adopt this AgreementTransactions, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of . Notwithstanding the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by may adjourn or postpone the commencement, public proposal, public disclosure or communication Special Meeting as and to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification extent required by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; andapplicable Law; (iib) within fifteen (15) days after the date hereof, prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and Merger, this Agreement and obtain and furnish the information required to be included by the SEC therein Transactions and, after consultation with PurchaserParent, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary proxy statement (including filing as promptly as reasonably practicable any amendments or information statement supplements thereto necessary to be filed in response to any such comments or as required by Law), use its commercially reasonable efforts to have the SEC confirm that it has no further comments and as promptly as practicable thereafter cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT"“Proxy Statement”), to be mailed to its stockholders at the earliest practicable datedate after the date that the SEC confirms it has no further comments; provided, provided however, that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel. (b) Purchaser ; provided, further, however, that, notwithstanding anything to the contrary contained herein, the Company shall votenot be required to mail the Proxy Statement to its stockholders, or cause to be votedcall, all give notice of, convene or hold the Special Meeting, on or prior to the Go-Shop Period End Date; notwithstanding the foregoing, prior to filing or mailing of any preliminary proxy statement or the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together SEC with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwiserespect thereto, the parties hereto shallCompany shall give Parent and its counsel a reasonable opportunity to review and comment on such document or response and shall give due consideration to all reasonable additions, subject to Article VI hereof, take all necessary deletions or changes suggested thereto by Parent and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.its counsel; and

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to following the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Mergerdate of this Agreement, the Company, acting through its Board, Company shall, in accordance with applicable Law: (Aa) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGMeeting") for the purposes purpose of considering and taking action upon obtaining the approval and adoption necessary approvals of the Merger Mergers and this AgreementAgreement by the stockholders of the Company; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (iib) prepare and, after consultation with and review by Parent and its outside counsel, file with the SEC a preliminary proxy or information statement relating to the Merger Mergers and this Agreement and use its reasonable best efforts (i) to obtain and furnish the information required to be included by the SEC therein in such proxy statement and, after consultation with Purchaserand review by Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and promptly cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT"), ) to be mailed to its stockholders at and, if necessary, after the earliest practicable dateProxy Statement shall have been so mailed, provided promptly circulate amended or supplemental proxy material and, if required in connection therewith, resolicit proxies; PROVIDED, that no such amended or supplemental proxy material will be mailed by the Company without consultation with and review by Parent and its outside counsel (which review shall not be unreasonably delayed) and (ii) to obtain the necessary adoption and approval of this Agreement and the Mergers by the stockholders of the Company; (c) include in the Proxy Statement the fairness opinion of Legacy, as described in Section 1.8 of this Agreement, and the recommendation of the Board of Directors that stockholders of the Company vote in favor of the approval of the Mergers and the adoption of this Agreement, unless a Superior Proposal is made and the Board of Directors determines, in accordance with Section 5.3(c) of this Agreement, that including the recommendation would constitute a breach of the fiduciary obligations of the Board of Directors to the Company's stockholders; PROVIDED, HOWEVER, that the Company agrees that its obligations under Section 6.1(a) to hold and convene the Special Meeting and to submit this Agreement and the Mergers for adoption and approval shall not be affected by a determination by the Board of Directors that it cannot make such recommendation to the Company's stockholders; (d) promptly notify Parent of the receipt of any comments from the SEC and of any request from the SEC for amendments or supplements to the preliminary proxy statement or the Proxy Statement or for additional information, and will be made by promptly supply Parent and its outside counsel with copies of all written correspondence between the Company without prior consultation or its representatives, on the one hand, and the SEC or members of its staff, on the other hand, with Purchaser respect to the preliminary proxy statement, the Proxy Statement or the Mergers; (e) promptly notify Parent of the receipt of any comments from the SEC with respect to the CVRs, supply Parent and its counsel.outside counsel with copies of all written correspondence between the Company or its representatives, on the one hand, and the SEC or members of its staff, on the other hand, with respect to the CVRs, consult with Parent prior to responding to such comments and permit Parent and its outside counsel to participate in any and all correspondence, discussions or communications with the SEC regarding the CVRs; (bf) Purchaser shall votepromptly inform Parent and its outside counsel if at any time prior to the Special Meeting, any event should occur that is required by applicable law to be set forth in an amendment of, or cause to be voteda supplement to, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) aboveProxy Statement, in the event that Purchaser and Merger Sub shall acquire that number of Shares whichwhich case, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, with the cooperation and approval of and in accordance consultation with Section 253 Parent and its outside counsel, will, upon learning of such event, promptly prepare and mail such amendment or supplement; and (g) promptly correct the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect (and each of Parent and Merger Subsidiary, with respect to written information supplied by it specifically for use in the Proxy Statement, promptly shall notify the Company of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Proxy Statement to include any information that shall become necessary in order to make the statements therein, in light of the DGCLcircumstances under which they were made, not misleading in any material respect.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser To the extent the issuance of the Notes and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Merger, the Company, acting through its Board, shall, in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETING") for the purposes of considering and taking action shares issuable upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding conversion thereof requires the approval of the Company's Board; (C) without limiting the generality stockholders of the foregoingCompany under the rules of The Nasdaq Stock Market, Inc., the Company agrees that shall: (i) use its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication best efforts to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a SEC, promptly after the date hereof, preliminary proxy or information statement relating materials with respect to a special meeting of the Merger stockholders of the Company called for the purpose of approving the issuance of the Notes and the shares issuable upon conversion thereof (the “Special Meeting”), as contemplated by this Agreement and obtain and furnish (the information required to be included by “Proposal”); (ii) file with the SEC therein andthe definitive proxy statement (the “Proxy Statement”) promptly after comments, after consultation with Purchaserif any, respond promptly to any comments made by are received from the SEC with respect to the preliminary proxy or materials and after the furnishing by the Company of all information statement and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT"), required to be mailed contained therein and (iii) acting through the Board of Directors, call the Special Meeting for the purpose of voting upon approving the Proposal. The Company shall cause the Proxy Statement, if any, and the information contained therein to its stockholders comply in all material respects with the applicable requirements of the Exchange Act and the rules and regulations thereunder. The Company shall cause the Proxy Statement, if any, at the earliest practicable date, provided that no amendments or supplements to time the Proxy Statement will (or any amendment or supplement thereto) is filed with the SEC or first sent to stockholders, or at the time the Special Meeting is held, not to 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 statements therein, in light of the circumstances under which they were made, not misleading; provided that the Company without prior consultation with Purchaser shall have no responsibility for any information regarding the Investors and its counseltheir Affiliates supplied or to be supplied by them in writing specifically for inclusion or incorporation by reference into the Proxy Statement. (b) Purchaser At the Special Meeting, the Investors shall vote, or cause to be voted, all vote any securities of the Shares acquired in the Offer or otherwise then Company owned by it or Merger Sub them at the time of such meeting and entitled to vote in favor of the approval and adoption Proposals, unless otherwise required by law or by the rules of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) aboveThe Nasdaq Stock Market, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.Inc.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Following the purchase of Shares pursuant to the Offer to satisfy the Minimum ConditionOffer, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Lawlaw: (Ai) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with PurchaserParent, 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 34 amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel. (b) Purchaser Parent shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, the Purchaser or Merger Sub any of Parent's other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Parent, the Purchaser and Merger Sub any other Subsidiaries of Parent shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, shares of each class of capital stock of the Company pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. 6.1.1.1 XLI shall prepare, in cooperation with Oak and Pixel, and XLI shall file with the SEC under the Exchange Act preliminary proxy materials for the purpose of soliciting proxies from XLI Stockholders to vote in favor of the adoption of this Agreement, the approval of the Merger and the appointment of the Stockholder Representatives at a special meeting of XLI Stockholders to be called and held for such purpose (a) As the "XLI SPECIAL MEETING"). XLI, with the assistance of Oak and Pixel, shall promptly respond to any SEC comments on the proxy materials and shall otherwise use its best efforts to resolve as promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant all SEC comments to the Offer satisfaction of the SEC. XLI agrees to satisfy provide to Oak and Pixel copies of any proxy materials or correspondence related thereto prior to any filing of such proxy materials or correspondence with the Minimum ConditionSEC. 6.1.1.2 Promptly following the resolution to the satisfaction of the SEC of all SEC comments on the proxy statement (or the expiration of the ten-day period under Rule 14a-6(a) under the Exchange Act, if required no SEC comments are received by such date), XLI shall distribute the proxy statement to the XLI Stockholders and, pursuant thereto, shall call the XLI Special Meeting in accordance with the Delaware General Corporation Law and shall solicit proxies from the XLI Stockholders to vote in favor of the adoption of this Agreement, the approval of the Merger and the appointment of the Stockholder Representatives at the XLI Special Meeting. 6.1.1.3 XLI shall comply with all applicable provisions of the Delaware General Corporation Law in the preparation, filing and distribution of the proxy statement, the solicitation of proxies thereunder, and the calling and holding of the XLI Special Meeting. Without limiting the foregoing, XLI shall ensure that the proxy statement does not, as of the date on which it is distributed to XLI Stockholders, and as of the date of the XLI Special Meeting, contain any untrue statement of a material fact, or omit to state a material fact necessary in order to consummate make the Mergerstatements made, in light of the Companycircumstances under which they were made, not misleading (provided that XLI shall only be responsible for the accuracy and completeness of information relating to XLI or furnished by XLI in writing for inclusion in the proxy statement). 6.1.1.4 XLI, acting through its BoardBoard of Directors, shall, shall include in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting the proxy statement the recommendation of its stockholders (Board of Directors that the "SPECIAL MEETING") for XLI Stockholders vote in favor of the purposes adoption of considering and taking action upon this Agreement, the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreementappointment of the Stockholder Representatives, and shall include disclosure regarding otherwise use its best efforts to obtain the approval requisite stockholder approval. 6.1.1.5 The proxy statement shall comply with the notice provisions of Section 262(d) of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counselDelaware General Corporation Law. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if If required by applicable Law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law, its Certificate of Incorporation and By-laws: (Ai) as promptly as practicable following the acceptance for payment and purchase of Shares by Purchaser pursuant to the Offer duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval of the Merger and the approval and adoption of this Agreement and use its reasonable best efforts to obtain the necessary approvals of the Merger and this AgreementAgreement by its stockholders; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement (as hereinafter defined) and, after consultation with PurchaserParent, 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 amendments amendment or supplements supplement thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, ; provided that no amendments amendment or supplements supplement to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel; and (iii) unless this Agreement has been terminated in accordance with Article VII, subject to its rights pursuant to Section 5.5, include in the Proxy Statement the recommendation of its Board of Directors that stockholders of the Company vote in favor of the approval of the Merger and the approval and adoption of this Agreement. (b) Purchaser Parent shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, Purchaser or Merger Sub any of its other Subsidiaries in favor of the approval and adoption of the Merger and the approval and adoption of this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) aboveanything else herein or in this Section 5.3, in the event that Parent, Purchaser and Merger Sub any other Subsidiaries of Parent shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% a number of the outstanding Sharesshares of each class of capital stock of the Company, pursuant to the Offer or otherwise, sufficient to enable Purchaser or the Company to cause the Merger to become effective under applicable Law without a meeting of stockholders of the Company, the parties hereto shall, at the request of Parent and subject to Article VI hereofVI, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the consummation of such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to following the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Mergerdate hereof, the Company, acting through its Boardin cooperation with and subject to the approval of the Special Committee if then in existence or otherwise by resolution of a majority of Disinterested Directors, shall, in accordance with applicable Law:: (i) prepare and file, within 25 days after the date hereof, with the SEC a preliminary proxy statement (the “Preliminary Proxy Statement”) relating to the Transactions and this Agreement; (ii) after consultation with Parent, respond as promptly as reasonably practicable to any comments made by the SEC with respect to the Preliminary Proxy Statement (including filing as promptly as reasonably practicable any amendments or supplements thereto necessary to be filed in response to any such comments or as required by Law); (iii) use commercially reasonable efforts to have the SEC confirm that it has no further comments thereto; and (iv) cause a definitive proxy statement, including any amendments or supplements thereto (the “Proxy Statement”), to be mailed to its stockholders at the earliest practicable date after the date that the SEC confirms it has no further comments; provided, however, that no amendments or supplements to the Schedule 13E-3, the Preliminary Proxy Statement or the Proxy Statement will be made by the Company without prior consultation with Parent and its counsel; provided, further, however, that the Company shall not be required to mail the Proxy Statement to its stockholders, or to call, give notice of, convene or hold the Special Meeting (as defined below), on or prior to the Go-Shop Period End Date. In connection with the filing of the Preliminary Proxy Statement and the Proxy Statement, the Company, in cooperation with and subject to the approval of the Special Committee if then in existence or otherwise by resolution of a majority of Disinterested Directors, and Parent shall cooperate to: (i) concurrently with the preparation and filing of the Preliminary Proxy Statement and the Proxy Statement (including any amendments or supplements thereto), jointly prepare and file with the SEC the Schedule 13E-3 relating to the Transactions and furnish to each other all information concerning such party as may be reasonably requested by the other party in connection with the preparation of the Schedule 13E-3; (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will consult with each other prior to providing such response; (iii) as promptly as reasonably practicable after consulting with each other, prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law; (iv) have cleared by the SEC the Schedule 13E-3; and (v) to the extent required by applicable Law, as promptly as reasonably practicable prepare, file and distribute to the stockholders of the Company any supplement or amendment to the Schedule 13E-3 if any event shall occur which requires such action at any time prior to the Special Meeting. (Ab) The Company shall, in accordance with applicable Law, notify Parent 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 Schedule 13E-3, the Preliminary Proxy Statement or the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Schedule 13E-3, the Preliminary Proxy Statement or the Proxy Statement. The Company shall give Parent a reasonable opportunity to comment on any correspondence with the SEC or its staff or any proposed material to be included in the Schedule 13E-3, the Preliminary Proxy Statement or the Proxy Statement prior to transmission to the SEC or its staff and shall not, unless required by Law, transmit any such material to which Parent reasonably objects. If the Company discovers at any time prior to the Special Meeting any information that, pursuant to the Exchange Act, is required to be set forth in an amendment or supplement to the Proxy Statement, then the Company, acting through the Special Committee if then in existence or otherwise by resolution of a majority of Disinterested Directors, shall promptly transmit such amendment or supplement to its stockholders. (c) The Company, acting through the Special Committee if then in existence or otherwise by resolution of a majority of Disinterested Directors, shall, subject to Section 7.01(a) and in accordance with applicable Law, duly call, give notice of, convene and and, unless this Agreement has been terminated, hold a special meeting of its stockholders (the "SPECIAL MEETING"“Special Meeting”) for the purposes of considering and taking action upon the approval and adoption of this Agreement and the Merger Transactions, including adjourning such meeting for up to ten business days to obtain such approval. Unless the Board or Special Committee, as applicable, has withdrawn or modified its approval or recommendation of this Agreement as expressly permitted by Section 7.03, the Company, acting through the Special Committee if then in existence or otherwise by resolution of a majority of Disinterested Directors, shall (i) use commercially reasonable efforts to solicit the approval of this Agreement by the stockholders of the Company and (ii) include in the Proxy Statement (A) the Special Committee’s and the Board’s declaration of the fairness and advisability of this Agreement; Agreement and the Board Recommendation, and (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Special Committee and the Board; (C) without limiting the generality of . Notwithstanding the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by may adjourn or postpone the commencement, public proposal, public disclosure or communication Special Meeting as and to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification extent required by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counselapplicable Law. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Following the purchase of Shares pursuant to the Offer to satisfy the Minimum ConditionOffer, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Lawlaw: (Ai) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with PurchaserParent, 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 amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel. (b) Purchaser Parent shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, the Purchaser or Merger Sub any of Parent's other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Parent, the Purchaser and Merger Sub any other Subsidiaries of Parent shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, shares of each class of capital stock of the Company pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Following the purchase of Shares pursuant to the Offer to satisfy the Minimum ConditionOffer, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Lawlaw: (Ai) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with PurchaserDCNA, respond promptly to any comments made by the SEC with respect to the preliminary proxy or information informa tion statement and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, provided PROVIDED that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser DCNA and its counsel. (b) Purchaser DCNA shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, the Purchaser or Merger Sub any of DCAG's other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that DCNA, the Purchaser and Merger Sub any other Subsidiaries of DCNA shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, shares of each class of capital stock of the Company pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if If required by applicable Law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law, its Certificate of Incorporation and By-laws: (Ai) as promptly as practicable following the acceptance for payment and purchase of Shares by Purchaser pursuant to the Offer duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and the approval and adoption of this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and (x) obtain and furnish the information required to be included by the SEC therein in the Proxy Statement (as hereinafter defined) and, after consultation with PurchaserParent, 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 amendments amendment or supplements supplement thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, ; provided that no amendments -------- amendment or supplements supplement to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counselcounsel and (y) use its reasonable best efforts to obtain the necessary approvals of the Merger and this Agreement by its stockholders; and (iii) unless this Agreement has been terminated in accordance with Article VII, subject to its rights pursuant to Section 5.5, include in the Proxy Statement the recommendation of its Board of Directors that stockholders of the Company vote in favor of the approval of the Merger and the approval and adoption of this Agreement. (b) Purchaser Parent shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, Purchaser or Merger Sub any of its other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) aboveanything else herein or in this Section 5.3, in the event that Parent, Purchaser and Merger Sub any other Subsidiaries of Parent shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% a number of the outstanding Sharesshares of each class of capital stock of the Company, pursuant to the Offer or otherwise, sufficient to enable Purchaser or the Company to cause the Merger to become effective under applicable Law without a meeting of stockholders of the Company, the parties hereto shall, at the request of Parent and subject to Article VI hereofVI, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the consummation of such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. 6.1.1.1 XLI shall prepare, in cooperation with Oak and Pixel, and XLI shall file with the SEC under the Exchange Act preliminary proxy materials for the purpose of soliciting proxies from XLI Stockholders to vote in favor of the adoption of this Agreement, the approval of the Merger and the appointment of the Stockholder Representatives at a special meeting of XLI Stockholders to be called and held for such purpose (a) As the "XLI Special Meeting"). XLI, with the assistance of Oak and Pixel, shall promptly respond to any SEC comments on the proxy materials and shall otherwise use its best efforts to resolve as promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant all SEC comments to the Offer satisfaction of the SEC. XLI agrees to satisfy provide to Oak and Pixel copies of any proxy materials or correspondence related thereto prior to any filing of such proxy materials or correspondence with the Minimum ConditionSEC. 6.1.1.2 Promptly following the resolution to the satisfaction of the SEC of all SEC comments on the proxy statement (or the expiration of the ten-day period under Rule 14a-6(a) under the Exchange Act, if required no SEC comments are received by such date), XLI shall distribute the proxy statement to the XLI Stockholders and, pursuant thereto, shall call the XLI Special Meeting in accordance with the Delaware General Corporation Law and shall solicit proxies from the XLI Stockholders to vote in favor of the adoption of this Agreement, the approval of the Merger and the appointment of the Stockholder Representatives at the XLI Special Meeting. 6.1.1.3 XLI shall comply with all applicable provisions of the Delaware General Corporation Law in the preparation, filing and distribution of the proxy statement, the solicitation of proxies thereunder, and the calling and holding of the XLI Special Meeting. Without limiting the foregoing, XLI shall ensure that the proxy statement does not, as of the date on which it is distributed to XLI Stockholders, and as of the date of the XLI Special Meeting, contain any untrue statement of a material fact, or omit to state a material fact necessary in order to consummate make the Mergerstatements made, in light of the Companycircumstances under which they were made, not misleading (provided that XLI shall only be responsible for the accuracy and completeness of information relating to XLI or furnished by XLI in writing for inclusion in the proxy statement). 6.1.1.4 XLI, acting through its BoardBoard of Directors, shall, shall include in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting the proxy statement the recommendation of its stockholders (Board of Directors that the "SPECIAL MEETING") for XLI Stockholders vote in favor of the purposes adoption of considering and taking action upon this Agreement, the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreementappointment of the Stockholder Representatives, and shall include disclosure regarding otherwise use its best efforts to obtain the approval requisite stockholder approval. 6.1.1.5 The proxy statement shall comply with the notice provisions of Section 262(d) of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counselDelaware General Corporation Law. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to Following the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Mergerexecution of this Agreement, the Company, acting through its Board, shall, in accordance with applicable Law: (Aa) as promptly as practicable, duly call, give notice of, convene and (unless this Agreement has been terminated) hold a special meeting of its stockholders (the "SPECIAL MEETING"“Special Meeting”) for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; , including adjourning such meeting for up to fifteen (B15) subject business days to obtain such approval. Except to the extent that the Board shall have withdrawn or modified its approval or recommendation of this Agreement as permitted by Section 4.87.03, declare advisable the Company shall (i) use reasonable best efforts to solicit the approval of this Agreement by the stockholders of the Company and recommend (ii) include in the Proxy Statement the Board’s declaration of the advisability of this Agreement and its recommendation to its the stockholders of the Company that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of . Notwithstanding the foregoing, the Company agrees that its obligations under clause may adjourn or postpone the Special Meeting (A) if and for so long as the Company is participating in discussions or negotiations with a third party with respect to an Acquisition Proposal not in violation of this Section 4.4(a)(i7.03, provided, however, such period to adjourn or postpone shall terminate on the earlier of the date that the Company is no longer participating in negotiations with a third party with respect to such an Acquisition Proposal or the 15th calendar day immediately following the Go-Shop Period End Date, or (B) shall not be affected by the commencement, public proposal, public disclosure or communication as and to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification extent required by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; andapplicable Law; (iib) within fifteen (15) days after the date hereof, prepare and file with the SEC a preliminary proxy or information statement relating to the Merger Transactions and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with PurchaserParent, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary proxy statement (including filing as promptly as reasonably practicable any amendments or information statement supplements thereto necessary to be filed in response to any such comments or as required by Law), use its reasonable best efforts to have the SEC confirm that it has no further comments and as promptly as practicable thereafter cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT"“Proxy Statement”), to be mailed to its stockholders at promptly after the earliest practicable datedate that the SEC confirms it has no further comments; provided, provided however, that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel. (b) Purchaser ; provided, further, however, that the Company shall votenot be required to mail the Proxy Statement to its stockholders, or cause convene or hold the Special Meeting, on or prior to be votedthe Go-Shop Period End Date; notwithstanding the foregoing, all prior to filing or mailing of any preliminary proxy statement or the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the Shares acquired in SEC with respect thereto, the Offer Company shall give Parent and its counsel a reasonable opportunity to review and comment on such document or otherwise then owned response and shall give due consideration to all reasonable additions, deletions or changes suggested thereto by it or Merger Sub in favor of the approval Parent and adoption of the Merger and this Agreement.its counsel; and (c) Notwithstanding notify Parent promptly of the provisions receipt of paragraphs (a) any comments from the SEC or its staff and (b) aboveof any request by the SEC or its staff for amendments or supplements to the proxy statement or for additional information and will supply Parent with copies of all correspondence between the Company or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the proxy statement. The Company shall give Parent a reasonable opportunity to comment on any correspondence with the SEC or its staff or any proposed material to be included in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant proxy statement prior to transmission to the Offer SEC or otherwiseits staff and shall not, unless required by Law, transmit any such material to which Parent reasonably objects. If at any time prior to the Special Meeting there shall be discovered any information that should be set forth in an amendment or supplement to the Proxy Statement, after obtaining the consent of Parent to such amendment or supplement (which consent shall not be unreasonably withheld or delayed), the parties hereto shall, subject Company shall promptly transmit such amendment or supplement to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCLits stockholders.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to following the Offer to satisfy execution of this Agreement (but in any event, in the Minimum Condition, if required by applicable Law in order to consummate the Mergercase of SECTION 7.01(b) within 10 business days), the Company, acting through its Board, shall, in accordance with applicable Law: (Aa) duly call, give notice of, convene and (unless this Agreement has been terminated) hold a special meeting of its stockholders (the "SPECIAL MEETING") " for the purposes of considering and taking action upon the approval and adoption of this Agreement and the Merger and this Agreement;Transactions, including adjourning such meeting for up to ten (10) business days to obtain such approval: (Bi) subject use reasonable best efforts to Section 4.8solicit the approval of this Agreement by the stockholders of the Company, (ii) except to the extent that the Board shall have withdrawn or modified its approval or recommendation of this Agreement as permitted by SECTION 7.03, declare advisable include in the Proxy Statement the Board's declaration of the advisability of this Agreement and recommend its recommendation to its the stockholders of the Company that they adopt this Agreement and approve the Merger and adopt this AgreementTransactions, and shall include disclosure regarding the approval of the Company's Board;; and (Ciii) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(iSECTION 7.01(a) shall not be affected by the commencement, public proposal, public disclosure or other communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; andAcquisition Proposal. (iib) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger Transactions and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with PurchaserParent, respond as promptly as reasonably practicable to any comments made by the SEC with respect to the preliminary proxy statement (including filing as promptly as reasonably practicable any amendments or information statement supplements thereto necessary to be filed in response to any such comments or as required by Law), use its reasonable best efforts to have the SEC confirm that it has no further comments and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT"), to be mailed to its stockholders at the earliest practicable datedate after the date that the SEC confirms it has no further comments, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.; and

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to following the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Mergerexecution of this Agreement, the Company, acting through its Board, shall, in accordance with applicable Law: (Aa) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of this Agreement and the Merger and Merger, including adjourning such meeting for up to 30 Business Days to obtain such approval. Except to the extent that the Board shall have withdrawn or modified its approval or recommendation of this Agreement; Agreement as permitted by Section 4.4, the Company shall (Bi) subject use reasonable best efforts to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding solicit the approval of this Agreement by the Companystockholders of the Company and (ii) include in the Proxy Statement the Board's Board; (C) without limiting declaration of the generality advisability of this Agreement and its recommendation to the stockholders of the Company that they adopt this Agreement and approve the Merger. Notwithstanding the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by may adjourn or postpone the commencement, public proposal, public disclosure or communication Special Meeting as and to the extent required by applicable Law. Unless this Agreement shall have been terminated in accordance with Section 7.1, the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or shall submit this Agreement to its stockholders at the withdrawal or modification by Special Meeting even if the Board shall have effected a Change of its approval Recommendation or recommendation a Withdrawal of the Offer, the Merger or this Agreement; andRecommendation; (iib) prepare and and, within 45 days after the date hereof, file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with PurchaserParent, respond as promptly as reasonably practicable to any comments made by the SEC with respect to the preliminary proxy statement (including filing as promptly as reasonably practicable any amendments or information statement supplements thereto necessary to be filed in response to any such comments or as required by applicable Law), use reasonable best efforts to have the SEC confirm that it has no further comments and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), to be mailed to its stockholders at the earliest practicable datedate after the date that the SEC confirms it has no further comments; provided, provided however, that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel. (b) Purchaser shall vote, counsel and after providing Parent a reasonable opportunity to review and comment on such amendments or cause to be voted, all supplements; and Table of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement.Contents (c) Notwithstanding notify Parent promptly of the provisions receipt of paragraphs 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 supply Parent with copies of all correspondence between the Company or any of the Company Representatives (a) as defined in Section 4.4(b)), on the one hand, and the SEC or its staff, on the other hand, with respect to the proxy statement. The Company shall give Parent a reasonable opportunity to review and comment on the Proxy Statement (b) aboveincluding each amendment or supplement thereto), in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together any correspondence with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant SEC or its staff or any other materials proposed to be submitted to the Offer SEC or otherwiseits staff prior to transmission to the SEC or its staff and shall not, unless required by Law, transmit any such material to which Parent reasonably objects. If at any time prior to the Special Meeting there shall be discovered any information that should be set forth in an amendment or supplement to the Proxy Statement, after obtaining the consent of Parent to such amendment or supplement (which consent shall not be unreasonably withheld or delayed), the parties hereto shall, subject Company shall promptly transmit such amendment or supplement to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCLits stockholders.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if If required by applicable Law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law, its Certificate of Incorporation and By-laws: (Ai) as promptly as practicable following the acceptance for payment and purchase of Shares by Purchaser pursuant to the Offer duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval of the Merger and the approval and adoption of this Agreement and use its reasonable best efforts to obtain the necessary approvals of the Merger and this AgreementAgreement by its stockholders; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement (as hereinafter defined) and, after consultation with PurchaserParent, 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 amendments amendment or supplements supplement thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, provided ; PROVIDED that no amendments amendment or supplements supplement to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel; and (iii) unless this Agreement has been terminated in accordance with Article VII, subject to its rights pursuant to Section 5.5, include in the Proxy Statement the recommendation of its Board of Directors that stockholders of the Company vote in favor of the approval of the Merger and the approval and adoption of this Agreement. (b) Purchaser Parent shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, Purchaser or Merger Sub any of its other Subsidiaries in favor of the approval and adoption of the Merger and the approval and adoption of this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) aboveanything else herein or in this Section 5.3, in the event that Parent, Purchaser and Merger Sub any other Subsidiaries of Parent shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% a number of the outstanding Sharesshares of each class of capital stock of the Company, pursuant to the Offer or otherwise, sufficient to enable Purchaser or the Company to cause the Merger to become effective under applicable Law without a meeting of stockholders of the Company, the parties hereto shall, at the request of Parent and subject to Article VI hereofVI, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the consummation of such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if If required by applicable Law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law, its Certificate of Incorporation and By-laws: (Ai) as promptly as practicable following the acceptance for payment and purchase of Shares by Purchaser pursuant to the Offer duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and the approval and adoption of this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and (x) obtain and furnish the information required to be included by the SEC therein in the Proxy Statement (as hereinafter defined) and, after consultation with PurchaserParent, 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 amendments amendment or supplements supplement thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, ; provided that no amendments amendment or supplements supplement to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel.counsel and (y) use its reasonable best efforts to obtain the necessary approvals of the Merger and this Agreement by its stockholders; and (b) Purchaser Parent shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, Purchaser or Merger Sub any of its other Subsidiaries in favor of approval of the Merger and the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) aboveanything else herein or in this Section 5.3, in the event that Parent, Purchaser and Merger Sub any other Subsidiaries of Parent shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% a number of the outstanding Sharesshares of each class of capital stock of the Company, pursuant to the Offer or otherwise, sufficient to enable Purchaser or the Company to cause the Merger to become effective under applicable Law without a meeting of stockholders of the Company, the parties hereto shall, at the request of Parent and subject to Article VI hereofVI, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the consummation of such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant The Company shall: (i) use its best efforts to the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Merger, the Company, acting through its Board, shall, in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETING") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a SEC, promptly after the date hereof, preliminary proxy or information statement relating materials with respect to the Merger Special Meeting called for the purpose of approving the (A) the Charter Amendment, and (B) the authorization and issuance of the shares of Series A Preferred Stock and the shares of Series B Preferred Stock, the Notes and the Warrants and the shares issuable upon conversion or exercise thereof, as contemplated by this Agreement and obtain and furnish (collectively, the information required to be included by "Proposals"); (ii) file with the SEC therein andthe definitive proxy statement (the "Proxy Statement") promptly after comments, after consultation with Purchaserif any, respond promptly to any comments made by are received from the SEC with respect to the preliminary proxy materials and after the furnishing by the Company of all information required to be contained therein; (iii) acting through its Board of Directors, (A) call the Special Meeting for the purpose of voting upon approving the Proposals and (B) include in the proxy statement the unanimous recommendation of its Board of Directors that holders of the Common Stock approve the Proposals, and (iv) not withdraw or information statement and cause amend in a definitive proxy or information statementmanner that is adverse to the Purchaser the recommendation set forth in 5.5(a)(iii)(B); unless, including any amendments or supplements thereto in the case of clauses (the "PROXY STATEMENT"i) through (iv), the Board of Directors determines in good faith after consultation with outside legal counsel, that to refrain from so withdrawing or amending such recommendation would be mailed reasonably likely to breach its stockholders at the earliest practicable date, provided that no amendments or supplements to fiduciary duties under applicable law. The Company shall cause the Proxy Statement will and the information contained therein to comply in all material respects with the applicable requirements of the Exchange Act and the rules and regulations thereunder. The Company shall cause the Proxy Statement at the time the Proxy Statement (or any amendment or supplement thereto) is filed with the SEC or first sent to stockholders, or at the time the Special Meeting is held, not to 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 prior consultation with Purchaser and its counselstatements therein, in light of the circumstances under which they were made, not misleading. (b) At the Special Meeting, the Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then vote any Securities owned by it or Merger Sub at the time of such meeting and entitled to vote in favor of the approval and adoption Proposals, unless otherwise required by law or by the rules of the Merger and this AgreementNYSE. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (ai) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient following the purchase of Shares pursuant to the Offer to satisfy that satisfies the Minimum Condition, if required by applicable Law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors and provided that Purchaser provides reasonable assistance and cooperation, shall, in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETING") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B1) subject to Section 4.85.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval approvals of the Company's BoardBoard and any committees thereof; (C2) without limiting so long as the generality Board has not made an adverse recommendation or withdrawn its recommendation as permitted pursuant to Section 5.8, duly call, give notice of, convene and hold a special meeting of its stockholders (the "Special Meeting") for the purposes of considering and taking action upon the approval and adoption of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or and this Agreement; and (ii3) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. The Proxy Statement, if filed, will not, on the date the Proxy Statement (or any amendment or supplement thereto) is first mailed to stockholders of the Company, contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading or will, at the time of the Special Meeting, omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Special Meeting which shall have become false or misleading in any material respect. (bii) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or it, Merger Sub or any of Purchaser's other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (ciii) Notwithstanding the provisions any other provision of paragraphs (a) and (b) abovethis Agreement, in the event that Purchaser and Purchaser, Merger Sub shall and any other Subsidiaries of Purchaser acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, Shares pursuant to the Offer Offer, exercise of the Top-Up Option, or otherwise, the parties hereto shall, subject to Article VI hereofVII, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 92A.180 of the DGCLNRS. (iv) without limiting the generality of the foregoing, but subject to Section 5.8, the Company's obligations under Section 5.4(a) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other Person of any Acquisition Proposal or the withdrawal or modification by the Board or any committee thereof of such Board's or committee's approval or recommendation of the Offer, the Merger or this Agreement.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to following the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Mergerexecution of this Agreement, the Company, acting through its Board, shall, in accordance with applicable Law: (Aa) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of this Agreement and the Merger and Merger, including adjourning such meeting for up to 30 Business Days to obtain such approval. Except to the extent that the Board shall have withdrawn or modified its approval or recommendation of this Agreement; Agreement as permitted by Section 4.4, the Company shall (Bi) subject use reasonable best efforts to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding solicit the approval of this Agreement by the Companystockholders of the Company and (ii) include in the Proxy Statement the Board's Board; (C) without limiting declaration of the generality advisability of this Agreement and its recommendation to the stockholders of the Company that they adopt this Agreement and approve the Merger. Notwithstanding the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by may adjourn or postpone the commencement, public proposal, public disclosure or communication Special Meeting as and to the extent required by applicable Law. Unless this Agreement shall have been terminated in accordance with Section 7.1, the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or shall submit this Agreement to its stockholders at the withdrawal or modification by Special Meeting even if the Board shall have effected a Change of its approval Recommendation or recommendation a Withdrawal of the Offer, the Merger or this Agreement; andRecommendation; (iib) prepare and and, within 45 days after the date hereof, file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with PurchaserParent, respond as promptly as reasonably practicable to any comments made by the SEC with respect to the preliminary proxy statement (including filing as promptly as reasonably practicable any amendments or information statement supplements thereto necessary to be filed in response to any such comments or as required by applicable Law), use reasonable best efforts to have the SEC confirm that it has no further comments and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), to be mailed to its stockholders at the earliest practicable datedate after the date that the SEC confirms it has no further comments; provided, provided however, that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel. (b) Purchaser shall vote, counsel and after providing Parent a reasonable opportunity to review and comment on such amendments or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement.supplements; and (c) Notwithstanding notify Parent promptly of the provisions receipt of paragraphs 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 supply Parent with copies of all correspondence between the Company or any of the Company Representatives (a) as defined in Section 4.4(b)), on the one hand, and the SEC or its staff, on the other hand, with respect to the proxy statement. The Company shall give Parent a reasonable opportunity to review and comment on the Proxy Statement (b) aboveincluding each amendment or supplement thereto), in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together any correspondence with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant SEC or its staff or any other materials proposed to be submitted to the Offer SEC or otherwiseits staff prior to transmission to the SEC or its staff and shall not, unless required by Law, transmit any such material to which Parent reasonably objects. If at any time prior to the Special Meeting there shall be discovered any information that should be set forth in an amendment or supplement to the Proxy Statement, after obtaining the consent of Parent to such amendment or supplement (which consent shall not be unreasonably withheld or delayed), the parties hereto shall, subject Company shall promptly transmit such amendment or supplement to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCLits stockholders.

Special Meeting; Proxy Statement. Adoption of --------------------------------------------- Agreement. --------- (a) As The Company shall: (i) as promptly as practicable after Purchaser following the execution and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Conditiondelivery of this Agreement, if required by applicable Law in order to consummate the Merger, the Company, acting through its Board, shall, establish a record date in accordance with applicable Law: the Company Organizational Documents and the BCL (Athe "Record ------ Date") and duly call, give notice of, convene and hold a special ---- meeting of its stockholders the Company's shareholders (together with all adjournments or postponements thereof, the "SPECIAL MEETINGSpecial Meeting") as soon as practicable --------------- after the date hereof for the purposes purpose of considering and taking action upon this Agreement and the approval and adoption of the Merger and this AgreementMerger; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) as promptly as practicable following the date hereof, prepare and file cause to be filed with the SEC a preliminary proxy or information statement Proxy Statement relating to the Merger and this Agreement and obtain and furnish the information required matters to be included submitted to the Company's shareholders at the Special Meeting. The Company shall use its reasonable best efforts to have the Proxy Statement "cleared" by the SEC therein SEC's staff and, after consultation with Purchaseras promptly as practicable thereafter, respond promptly to any comments made by cause the SEC with respect to the preliminary proxy or information statement and cause a Proxy Statement, in definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT")form, to be mailed to its stockholders at the earliest Company's shareholders in accordance with Regulation 14A under the Exchange Act, the Company Organizational Documents and the BCL. As promptly as practicable dateafter receipt thereof, provided that no the Company shall provide Parent with copies of all written comments and advise Parent of any oral comments with respect to the Proxy Statement received from the SEC's staff. The Company shall provide Parent with a reasonable opportunity to review and comment on all proposed amendments or and supplements to the Proxy Statement prior to filing the same with the SEC, and will provide Parent with a true and complete copy of all such filings made with the SEC; (iii) include in the Proxy Statement (A) the opinion of the Financial Advisor referred to in Section 4.24 and (B) the recommendation of the Company Board of Directors (and the Special Committee) that shareholders of the Company vote in favor of the adoption of this Agreement (the "Company Recommendation"), unless, in the case of ---------------------- the foregoing clause (B), in the good-faith judgment of the Company Board of Directors (and the Special Committee), after consultation with outside legal counsel, the inclusion of the Company Recommendation would be made inconsistent with its fiduciary duties under applicable law; and (iv) use all reasonable efforts to solicit from shareholders proxies in favor of the adoption of this Agreement and take all actions reasonably necessary or, in the reasonable opinion of Parent, advisable to secure the approval of shareholders required by the BCL, the Company without prior consultation with Purchaser Organizational Documents and its counselany other applicable law to effect the Merger. (b) Purchaser Parent shall votefurnish all information concerning it as may reasonably be requested by the Company in connection with the actions required to be taken by the Company under Section 7.1(a)(ii) and the preparation and filing of the Proxy Statement and shall use its reasonable best efforts to have the Proxy Statement "cleared" by the SEC's staff. Parent shall vote any shares of the Company beneficially owned by it, or with respect to which it has the power (by agreement, proxy or otherwise) to vote or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the adoption of this Agreement and approval and adoption of the Merger and this Agreementat the Special Meeting. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Following the purchase of Shares pursuant to the Offer to satisfy the Minimum ConditionOffer, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Lawlaw: (Ai) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this AgreementAgree ment; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with PurchaserAlcoa, respond promptly to any comments made by the SEC with respect to the preliminary proxy or information informa tion statement and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Alcoa and its counsel. (b) Purchaser Alcoa shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, the Purchaser or Merger Sub any of Alcoa's other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Alcoa, the Purchaser and Merger Sub any other Subsidiaries of Alcoa shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, shares of each class of capital stock of the Company pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if If required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law: (A) as promptly as practicable after the date hereof, duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETING") ), for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval approvals of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal Competing Transaction (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board or any committee thereof of its such Board's or committee's approval or recommendation of the Offer, the Merger or this Agreement; and (iib) As promptly as practicable after the date hereof, the Company shall prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and use all best efforts to file such preliminary proxy or information statement with the SEC within ten (10) business days after the consummation of the Offer, and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), ) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. (bc) Purchaser shall voteIf at any time prior to the Effective Time any information relating to the Company or Purchaser, or cause any of their respective affiliates, officers or directors, should be discovered by the Company or Purchaser which should be set forth in an amendment or supplement to be votedthe Proxy Statement, all so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the Shares acquired circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the shareholders of the Company. (d) Subject to the fiduciary obligations of the Board determined after consultation with outside legal counsel, the Company shall (i) include in the Offer or otherwise then owned by it or Merger Sub Proxy Statement the recommendation of the Board that shareholders of the Company vote in favor of the approval and adoption of the Merger and the approval and adoption of this Agreement, and (ii) use its reasonable best efforts to procure the approval of the shareholders of the Company for the Merger required under applicable Law. (ce) No filing of, or amendment or supplement to, the Proxy Statement will be made by the Company without providing Purchaser the opportunity to review and comment thereon. Purchaser shall immediately review and comment upon any such filing, amendment or supplement. The Company will advise Purchaser, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. (f) Notwithstanding the provisions of paragraphs (a) and through (bf) above, in the event that Purchaser Parent, Holdco, Purchaser, Xxxxxxxx and Merger Sub any of their subsidiaries and affiliates shall acquire that number of have acquired Shares which, and Class B Shares (taken together with the Shares they already ownand Class B Shares then owned by Parent, Holdco, Purchaser, Xxxxxxxx and any of their subsidiaries and affiliates) constitute in the aggregate at least 90% of the voting power of the outstanding Shares and Class B Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL. (g) Immediately following execution by the Company of this Agreement, the Company shall cancel the special stockholder meeting scheduled for February 9, 2006 and shall take such actions as are necessary under applicable law to remove from consideration at such special meeting or otherwise the approval by the Company's stockholders of the Transaction Resolutions (as defined in the Purchase Agreement). The Company hereby represents that it has, through a duly authorized resolution of the Board, resolved to take such actions, including without limitation, cancellation of such special meeting and the removal from consideration at any meeting of stockholders any matter related to the Transaction Resolutions.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Merger, the Company, acting through its Board, shall, The Partnership shall take all commercially reasonable action necessary in accordance with applicable Law: (A) Applicable Law and the Partnership’s Original Partnership Agreement to duly call, give notice of, convene and hold a special meeting of its stockholders limited partners (the "SPECIAL MEETING"“Special Meeting”) as promptly as practicable after the date hereof to consider and vote upon the adoption and approval of the Transaction, to the extent such limited partner approval is necessary with respect to the effectuation of any part of the Transaction. The limited partner vote required for the purposes of considering adoption and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8Transaction shall be the vote required by Applicable Law, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Original Partnership Agreement, and shall include disclosure regarding the rules of the NYSE, as represented by the Partnership in Section 3.3. The Board of Directors of the Partnership GP shall, subject to its fiduciary obligations to the Partnership’s limited partners under Applicable Law, taking into account the advice of counsel, (i) recommend to such limited partners that they vote in favor of the adoption and approval of all matters necessary to effectuate the Company's Board;Transaction, (ii) use its reasonable best efforts to solicit from such limited partners proxies in favor of such adoption and approval, and (iii) take all other action reasonably necessary to secure a vote of such limited partners in favor of such adoption and approval. The Partnership GP shall also use its reasonable best efforts to obtain a statement from all of its officers and directors that own partnership interests in the Partnership and entitled to vote at the Special Meeting that such persons intend to vote all such partnership interests owned by such limited partners in favor of the Transaction at the Special Meeting. (Cb) without limiting As promptly as practicable after the generality of the foregoingdate hereof, the Company agrees that its obligations Partnership shall prepare, shall file with the SEC under clause (A) of this Section 4.4(a)(i) the Exchange Act, shall not be affected use all reasonable best efforts to have cleared by the commencementSEC, public proposaland promptly thereafter shall mail to its limited partners, public disclosure or communication a proxy statement with respect to the Company or any other person of any Company Takeover Proposal (Special Meeting. The term “Proxy Statement”, as used herein, means such term is defined proxy statement and all related proxy materials and all amendments and supplements thereto, if any. Except to the extent otherwise determined in Section 4.8(a)) or the withdrawal or modification good faith by the Board of Directors of the Partnership GP in the exercise of its approval or fiduciary duties, taking into account the advice of counsel, the Proxy Statement shall contain the recommendation of the OfferBoard that limited partners of the Partnership vote in favor of the adoption and approval of all matters necessary to effectuate the Transaction. The Partnership shall notify Buyers promptly of the receipt of any comments on, or any requests for amendments or supplements to, the Merger or this Agreement; and (ii) prepare Proxy Statement by the SEC, and file the Partnership shall supply Buyers with copies of all correspondence between it and its representatives, on the one hand, and the SEC a preliminary proxy or information statement relating members of its staff, on the other, with respect to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein andProxy Statement. The Partnership, after consultation with PurchaserBuyers, shall use its reasonable best efforts to respond promptly to any comments made by the SEC with respect to the preliminary proxy or Proxy Statement. The Partnership and Buyers shall cooperate with each other in preparing the Proxy Statement, and the Partnership and Buyers shall each use its reasonable best efforts to obtain and furnish the information statement and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT"), required to be mailed included in the Proxy Statement. The Partnership and Buyers each agree promptly to its stockholders at the earliest practicable date, correct any information provided that no amendments or supplements to by it for use in the Proxy Statement will be made by the Company without prior consultation with Purchaser if and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer extent that such information shall have become false or otherwisemisleading in any material respect, and the parties hereto shall, subject Partnership further agrees to Article VI hereof, take all steps necessary and appropriate action to cause the Merger Proxy Statement as so corrected to become effective as soon as practicable after such acquisition, without a meeting of stockholders be filed with the SEC and to be disseminated promptly to the limited partners of the CompanyPartnership, in accordance with Section 253 of each case as and to the DGCLextent required by Applicable Law.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Merger, the Company, acting through its Board, The Company shall, in accordance with applicable Law: (A) Law and its Governing Documents, duly call, give notice of, convene and hold a special meeting of its stockholders the Company’s shareholders (including any adjournment or postponement thereof, the "SPECIAL MEETING"“Company Special Meeting”) as soon as practicable following the date hereof solely for the purposes purpose of considering obtaining the Company Shareholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be required to hold the Company Special Meeting if this Agreement is validly terminated in accordance with Article IX. (b) In connection with the Company Special Meeting, the Company shall prepare a proxy statement (as amended and taking action supplemented from time to time, the “Proxy Statement”) relating to the this Agreement and the transactions contemplated herein and shall use commercially reasonable efforts to cause the preliminary Proxy Statement to be filed with the SEC no later than the tenth business day immediately following the date of this Agreement. Investor shall promptly provide to the Company any information concerning itself and its Affiliates required for inclusion in the Proxy Statement and shall promptly provide such other information or assistance in the preparation thereof as may be reasonably requested by the Company and, after consulting with Investor, the Company shall promptly file the preliminary Proxy Statement with the SEC. The Company shall use its reasonable best efforts to (i) respond to any comments on the Proxy Statement or requests for additional information from the SEC as soon as practicable after receipt of any such comments or requests and (ii) cause the Proxy Statement to be mailed to the shareholders of the Company as promptly as practicable after the Proxy Statement is cleared by the SEC. The Company shall promptly (A) notify Investor upon the approval receipt of any such comments or requests and adoption of the Merger and this Agreement; (B) subject to Section 4.8provide Investor with copies of all correspondence between the Company and its representatives, declare advisable and recommend to its stockholders that they approve on the Merger and adopt this Agreementone hand, and shall include disclosure regarding the approval SEC and its staff, on the other hand, relating to the Proxy Statement. Prior to responding to any such comments or requests or the filing or mailing of the Company's Board; (C) without limiting the generality of the foregoingProxy Statement, the Company agrees (x) shall provide Investor with a reasonable opportunity to review and comment on any drafts of the Proxy Statement and related correspondence and filings and (y) shall include in such drafts, correspondence and filings all comments reasonably proposed by Investor. Prior to the time of obtaining the Company Shareholder Approval, each of the Company and Investor shall correct promptly any information provided by it to be used specifically in the Proxy Statement that its obligations under clause (A) of shall have become false or misleading in any material respect, and the Company shall, in accordance with the procedures set forth in this Section 4.4(a)(i) shall not be affected by the commencement5.12(b), public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy such amendment or information statement relating supplement as soon thereafter as is reasonably practicable and to the Merger and this Agreement and obtain and furnish the information extent required by applicable Law, cause such amendment or supplement to be included by the SEC therein and, after consultation with Purchaser, respond promptly to any comments made by the SEC with respect distributed to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT"), to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders shareholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Following the purchase of Shares pursuant to the Offer to satisfy the Minimum ConditionOffer, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Lawlaw: (Ai) duly call, give notice of, solicit proxies for (if necessary), convene and hold a an annual or special meeting of its stockholders shareholders (the "SPECIAL MEETINGCompany Shareholders Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with Purchaserthe Parent, 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 amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders shareholders at the earliest practicable date, ; provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser the Parent and its counsel. (b) Purchaser The Parent shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, the Purchaser or Merger Sub any of the Parent's other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that the Parent, the Purchaser and Merger Sub any other Subsidiaries of the Parent shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, shares of each class of capital stock of the Company pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders shareholders of the Company, in accordance with Section 253 33-818 of the DGCLCBCA.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Merger, the Company, acting through its Board, shall, in accordance with applicable Law: (A) duly call, give notice of, convene and hold The Company shall cause a special meeting of its stockholders the Class A Members (the "SPECIAL MEETING"“Special Meeting”) to be duly called and held as soon as reasonably practicable after the execution of this Agreement for the purposes purpose of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding voting on the approval of this Agreement and the Company's Board; (C) without limiting the generality Merger. The Board of Directors of the foregoing, Company shall recommend to the Class A Members that they vote in favor of approval of this Agreement and the Merger; but the Board of Directors of the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by obligated to recommend approval of this Agreement and the commencement, public proposal, public disclosure or communication to Merger if the Company or any other person of any Company Takeover Proposal has received a Superior Third-Party Acquisition Offer (as such term is defined in Section 4.8(a6.2(a)) or the withdrawal or modification by and the Board of its Directors of the Company determines that it wishes to recommend approval or of the Superior Third-Party Acquisition Offer, and, therefore, that the recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and approval of this Agreement and obtain and furnish the information required to Merger should be included by the SEC therein and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counselwithdrawn. (b) Purchaser The Company, Parent, and Parent Subsidiary, as promptly as reasonably practicable following the execution of this Agreement, shall voteprepare a proxy statement, together with a form of proxy, with respect to the Special Meeting (such proxy statement, together with any amendments thereof or supplements thereto, being called the “Proxy Statement”). The Company shall use reasonable efforts to have the Proxy Statement cleared by the SEC as promptly as practicable and, as soon as reasonably practicable thereafter, shall cause copies of the Proxy Statement and form of proxy to be voted, mailed to the Class A Members in accordance with the Company’s operating agreement and applicable provisions of law. The Proxy Statement and form of proxy shall comply as to form in all material respects with the applicable requirements of Colorado law and the Exchange Act and the rules and regulations of the Shares acquired SEC promulgated thereunder. After the delivery to the Class A Members of copies of the Proxy Statement and form of proxy, the Company, Parent, and Parent Subsidiary shall use reasonable best efforts to solicit proxies in connection with the Offer or otherwise then owned by it or Merger Sub Special Meeting in favor of approval of this Agreement and the approval Merger, unless the Company has received a Superior Third-Party Acquisition Offer and adoption the Board of Directors of the Merger and this AgreementCompany determines that it wishes to recommend approval of the Superior Third-Party Acquisition Offer, and, therefore, that such solicitation should not be made. (c) Notwithstanding Except as otherwise provided in this Section 6.1, the provisions of paragraphs Company shall engage a nationally recognized proxy solicitor (athat is reasonably acceptable to Parent and Parent Subsidiary) and (b) above, to solicit proxies in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together connection with the Shares they already own, constitute Special Meeting in favor of approval of this Agreement and the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCLMerger.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to following the Offer to satisfy execution of this Agreement (but in any event, in the Minimum Condition, if required by applicable Law in order to consummate the Mergercase of Section 7.01(b) within 10 business days), the Company, acting through its Board, shall, shall in accordance with applicable Law: (Aa) duly call, give notice of, convene and (unless this Agreement has been terminated) hold a special meeting of its stockholders (the "SPECIAL MEETING") ‘‘Special Meeting’’ for the purposes of considering and taking action upon the approval and adoption of this Agreement and the Merger and this Agreement;Transactions, including adjourning such meeting for up to ten (10) business days to obtain such approval: (Bi) subject use reasonable best efforts to solicit the approval of this Agreement by the stockholders of the Company, (ii) except to the extent that the Board shall have withdrawn or modified its approval or recommendation of this Agreement as permitted by Section 4.87.03, declare advisable include in the Proxy Statement the Board’s declaration of the advisability of this Agreement and recommend its recommendation to its the stockholders of the Company that they adopt this Agreement and approve the Merger and adopt this AgreementTransactions, and shall include disclosure regarding the approval of the Company's Board;; and (Ciii) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i7.01(a) shall not be affected by the commencement, public proposal, public disclosure or other communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; andAcquisition Proposal. (iib) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger Transactions and this Agreement and obtain and furnish the information required to be included by the SEC therein and, after consultation with PurchaserParent, respond as promptly as reasonably practicable to any comments made by the SEC with respect to the preliminary proxy statement (including filing as promptly as reasonably practicable any amendments or information statement supplements thereto necessary to be filed in response to any such comments or as required by Law), use its reasonable best efforts to have the SEC confirm that it has no further comments and cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT"‘‘Proxy Statement’’), to be mailed to its stockholders at the earliest practicable datedate after the date that the SEC confirms it has no further comments, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser Parent and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the approval and adoption of the Merger and this Agreement.; and (c) Notwithstanding notify Parent promptly of the provisions receipt of paragraphs (a) any comments from the SEC or its staff and (b) aboveof any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. The Company shall give Parent a reasonable opportunity to comment on any correspondence with the SEC or its staff or any proposed material to be included in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant Proxy Statement prior to transmission to the Offer SEC or otherwiseits staff and shall not, unless required by Law, transmit any such material to which Parent reasonably objects. If at any time prior to the Special Meeting there shall be discovered any information that should be set forth in an amendment or supplement, after obtaining the consent of Parent to such amendment or supplement (which consent shall not be unreasonably withheld or delayed), the parties hereto shall, subject Company shall promptly transmit such amendment or supplement to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCLits stockholders.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient following the purchase of Shares pursuant to the Offer to satisfy that satisfies the Minimum Condition, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETING") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval approvals of the Company's BoardBoard and the Special Committee; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board or any committee thereof of its such Board's or committee's approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), ) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or it, Merger Sub or any of Purchaser's other subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Purchaser, Merger Sub and any other subsidiaries of Purchaser shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient following the purchase of Shares pursuant to the Offer to satisfy the Minimum ConditionOffer, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Lawlaw: (i) (A) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; ; (B) subject to Section 4.84.8(b), the Company shall, through the Company's Board of Directors, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval approvals of the Company's Board; Board and the Special Committee referred to in Section 2.20(c) in the Proxy Statement; and (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its Directors or any committee thereof of such Board's or committee's approval or recommendation of the Offer, the Merger or this Agreement; and. (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or it, Merger Sub or any of Pur- chaser's other subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Purchaser, Merger Sub and any other subsidiaries of Purchaser shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, shares of each class of capital stock of the Company pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCLDGCL and Section 302A.621 of the MBCA.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if If required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law: (A) as promptly as practicable after the date hereof, duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETING") “Special Meeting”), for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval approvals of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal Competing Transaction (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board or any committee thereof of its such Board’s or committee’s approval or recommendation of the Offer, the Merger or this Agreement; and (iib) As promptly as practicable after the date hereof, the Company shall prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and use all best efforts to file such preliminary proxy or information statement with the SEC within ten (10) business days after the consummation of the Offer, and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), “Proxy Statement”) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. (bc) Purchaser shall voteIf at any time prior to the Effective Time any information relating to the Company or Purchaser, or cause any of their respective affiliates, officers or directors, should be discovered by the Company or Purchaser which should be set forth in an amendment or supplement to be votedthe Proxy Statement, all so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the Shares acquired circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the shareholders of the Company. (d) Subject to the fiduciary obligations of the Board determined after consultation with outside legal counsel, the Company shall (i) include in the Offer or otherwise then owned by it or Merger Sub Proxy Statement the recommendation of the Board that shareholders of the Company vote in favor of the approval and adoption of the Merger and the approval and adoption of this Agreement, and (ii) use its reasonable best efforts to procure the approval of the shareholders of the Company for the Merger required under applicable Law. (ce) No filing of, or amendment or supplement to, the Proxy Statement will be made by the Company without providing Purchaser the opportunity to review and comment thereon. Purchaser shall immediately review and comment upon any such filing, amendment or supplement. The Company will advise Purchaser, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. (f) Notwithstanding the provisions of paragraphs (a) and through (bf) above, in the event that Purchaser Parent, Holdco, Purchaser, Hxxxxxxx and Merger Sub any of their subsidiaries and affiliates shall acquire that number of have acquired Shares which, and Class B Shares (taken together with the Shares they already ownand Class B Shares then owned by Parent, Holdco, Purchaser, Hxxxxxxx and any of their subsidiaries and affiliates) constitute in the aggregate at least 90% of the voting power of the outstanding Shares and Class B Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL. (g) Immediately following execution by the Company of this Agreement, the Company shall cancel the special stockholder meeting scheduled for February 9, 2006 and shall take such actions as are necessary under applicable law to remove from consideration at such special meeting or otherwise the approval by the Company’s stockholders of the Transaction Resolutions (as defined in the Purchase Agreement). The Company hereby represents that it has, through a duly authorized resolution of the Board, resolved to take such actions, including without limitation, cancellation of such special meeting and the removal from consideration at any meeting of stockholders any matter related to the Transaction Resolutions.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser following satisfaction of the Minimum Condition and Merger Sub have purchased sufficient the purchase of Shares pursuant to the Offer to satisfy the Minimum ConditionOffer, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting of its stockholders shareholders (the "SPECIAL MEETING"“Special Meeting”) for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.84.8(b), the Company shall, through the Company’s Board of Directors, declare advisable and recommend to its stockholders shareholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval approvals of the Company's Board’s Board and the Special Committee referred to in Section 2.22(c) in the Proxy Statement; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its Directors or any committee thereof of such Board’s or committee’s approval or recommendation of the Offer, the Merger or this Agreement; and (iii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), “Proxy Statement”) to be mailed to its stockholders shareholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or it, Merger Sub or any of Purchaser’s other subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Purchaser, Merger Sub and any other subsidiaries of Purchaser shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, shares of each class of capital stock of the Company pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders shareholders of the Company, in accordance with Section 253 302A.621 of the DGCLMBCA.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Shares pursuant to the Offer to satisfy the Minimum Condition, if required by applicable Law in order to consummate the Merger, the CompanyUXP, acting through its BoardBoard of Directors, shall, shall in accordance with applicable Lawlaw and its Charter Documents: (Ai) duly call, give notice of, convene and hold a special meeting of its stockholders shareholders (the "SPECIAL MEETING"“Special Meeting”) as soon as practicable following the date of this Agreement for the purposes purpose of considering and taking action upon this Agreement and the Merger; (ii) except as expressly permitted by Section 5.6, include in the proxy or information statement (the “Proxy Statement”) with respect to the Special Meeting the recommendation of its Board of Directors that its shareholders vote in favor of the approval and adoption of this Agreement, the Plan of Merger, the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreementtransactions contemplated hereby; and (iiiii) prepare and file with the SEC a preliminary proxy or information statement relating use its reasonable best efforts (a) to the Merger and this Agreement and obtain and furnish the information required to be included by it in the Proxy Statement, (b) to file the Proxy Statement with the SEC therein andas promptly as is practicable, after consultation with Purchaserand review by, Parent and its advisors, (c) after consultation with the other parties hereto, respond as promptly as is reasonably practicable to any comments made by the SEC with respect to the Proxy Statement and any preliminary proxy or information statement and version thereof, (d) cause a definitive proxy or information statement, including any amendments or supplements thereto (the "PROXY STATEMENT"), Proxy Statement to be mailed to its stockholders shareholders at the earliest practicable datetime, provided that no amendments or supplements and (e) subject to the Proxy Statement will be made by fiduciary duties of its Board of Directors under applicable laws, to obtain the Company without prior consultation with Purchaser and its counsel. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or Merger Sub in favor of the necessary approval and adoption of this Agreement, the Plan of Merger, the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, transactions contemplated hereby by its shareholders. Any information in the event that Purchaser and Merger Sub shall acquire that number of Shares whichProxy Statement or any amendment or supplement thereto relating to Parent, together with its stockholders or Affiliates, or Mergerco or the Shares they already own, constitute in the aggregate at least 90% sources or status of the outstanding Shares, pursuant financing for the Merger shall be subject to the Offer prior approval of Parent, which approval shall not be unreasonably withheld or otherwisedelayed, and UXP shall not file or disseminate the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after Proxy Statement without such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCLconsent.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient following the purchase of Shares pursuant to the Offer to satisfy that satisfies the Minimum Condition, if required by applicable Law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors and provided that Purchaser provides reasonable assistance and cooperation, shall, in accordance with applicable Law: (A) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETING") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (Bi) subject to Section 4.85.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval approvals of the Company's BoardBoard and any committees thereof; (Cii) without limiting so long as the generality Board has not made an adverse recommendation or withdrawn its recommendation as permitted pursuant to Section 5.8, duly call, give notice of, convene and hold a special meeting of its stockholders (the “Special Meeting”) for the purposes of considering and taking action upon the approval and adoption of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or and this Agreement; and (iiiii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with Purchaser, 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 amendments or supplements thereto (the "PROXY STATEMENT"), “Proxy Statement”) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser and its counsel. The Proxy Statement, if filed, will not, on the date the Proxy Statement (or any amendment or supplement thereto) is first mailed to stockholders of the Company, contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading or will, at the time of the Special Meeting, omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Special Meeting which shall have become false or misleading in any material respect. (b) Purchaser shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it or it, Merger Sub or any of Purchaser’s other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that Purchaser and Merger Sub shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

Special Meeting; Proxy Statement. (a) As promptly as practicable after Purchaser and Merger Sub have purchased sufficient Following the purchase of Shares pursuant to the Offer to satisfy the Minimum ConditionOffer, if required by applicable Law law in order to consummate the Merger, the Company, acting through its BoardBoard of Directors, shall, in accordance with applicable Lawlaw: (Ai) duly call, give notice of, convene and hold a special meeting of its stockholders (the "SPECIAL MEETINGSpecial Meeting") for the purposes of considering and taking action upon the approval and adoption of the Merger and this Agreement; (B) subject to Section 4.8, declare advisable and recommend to its stockholders that they approve the Merger and adopt this Agreement, and shall include disclosure regarding the approval of the Company's Board; (C) without limiting the generality of the foregoing, the Company agrees that its obligations under clause (A) of this Section 4.4(a)(i) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal (as such term is defined in Section 4.8(a)) or the withdrawal or modification by the Board of its approval or recommendation of the Offer, the Merger or this Agreement; and (ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and obtain and furnish the information required to be included by the SEC therein in the Proxy Statement and, after consultation with PurchaserDCNA, 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 amendments or supplements thereto (the "PROXY STATEMENTProxy Statement"), ) to be mailed to its stockholders at the earliest practicable date, provided that no amendments or supplements to the Proxy Statement will be made by the Company without prior consultation with Purchaser DCNA and its counsel. (b) Purchaser DCNA shall vote, or cause to be voted, all of the Shares acquired in the Offer or otherwise then owned by it it, the Purchaser or Merger Sub any of DCAG's other Subsidiaries in favor of the approval and adoption of the Merger and this Agreement. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, in the event that DCNA, the Purchaser and Merger Sub any other Subsidiaries of DCNA shall acquire that number of Shares which, together with the Shares they already own, constitute in the aggregate at least 90% of the outstanding Shares, shares of each class of capital stock of the Company pursuant to the Offer or otherwise, the parties hereto shall, subject to Article VI hereof, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.