Common use of Stockholder Approval Clause in Contracts

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholders.

Stockholder Approval. Unless In consultation with the NYSE informs Purchaser, the Company that shall use its best efforts to obtain the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days Stockholder Approval as promptly as practicable after the date hereof. Without limiting the generality of the Original Agreementforegoing, (i) the Company will shall promptly file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement solicitation materials with the SEC, and promptly respond to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, in connection therewith and take all other actions to cause the proxy statement to be filed in definitive form and distributed release such materials for delivery to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after (ii) the Company is informed by the staff shall call a meeting of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the release of such proxy solicitation materials and (iii) unless the Board determines in good faith that doing so would be inconsistent with its fiduciary duties under applicable Law, the Board shall recommend to the Company’s stockholders that they grant the Stockholder Approval (and shall not revoke or rescind its recommendation) and the Company distributes shall include the Board’s recommendation in such proxy statement solicitation materials. The Company shall provide the Purchaser and its counsel with drafts of all proxy solicitation materials sufficiently in advance of their filing to permit the Purchaser and its stockholderscounsel to review and comment thereon, shall promptly advise the Purchaser of any communications from the staff of the SEC regarding such proxy solicitation materials and promptly provide the Purchaser and its counsel with copies of any written comments or other communications from the SEC’s staff regarding such proxy solicitation materials. The Company shall use reasonable efforts in good faith to incorporate any comments provided by the Purchaser regarding such proxy solicitation materials. If advisable, the Company shall retain a proxy solicitation firm to assist in the solicitation of proxies in connection with the Stockholder Approval. The Purchaser shall reasonably cooperate with the Company in connection with its efforts to obtain the Stockholder Approval, including by providing any information regarding the Purchaser that may be required to be included in any proxy solicitation materials, provided that neither Purchaser shall be required to agree to any change in the terms of the Perseus Securities or any modification or amendment to this Agreement or any other Transaction Document.

Stockholder Approval. Unless If by [___], 2023 the NYSE informs Company has not effected a reorganization of the Company that results in the NYSE rules Company becoming a wholly owned subsidiary of a newly formed holding company (including Rule 312.03 the “Corporate Reorganization”) with a sufficient number of shares of Common Stock authorized to permit the exercise in full of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original AgreementSeries B Warrants, the Company will file with the SEC shall take all corporate action necessary to call a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that stockholders (which may be its annual meeting) (the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, “Stockholders Meeting” and solely to the extentstockholder approval at such Stockholders Meeting, the Board determines“Stockholder Approval”), after consultation with counsel, that in for the exercise purpose of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting seeking approval of the Company’s stockholders contemplated by this Agreementto either increase the number of shares of Common Stock the Company is authorized to issue or effect a reverse stock split of the Company’s issued and outstanding shares of Common Stock, in either case in an amount sufficient to permit the exercise in full of the Series B Warrants (a “Capital Event”). If In connection therewith, the preliminary Company will as soon as reasonably practicable after the Closing Date file with the Commission proxy materials (including a proxy statement has not been filed with and form of proxy) for use at the SEC prior Stockholders Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall as soon as reasonably practicable mail such proxy materials to the date stockholders of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable considerationCompany. The Company will provide comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any comments received from proxy statement (as amended or supplemented, the SEC “Proxy Statement”) and any form of proxy to be sent to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult stockholders of the Company in connection with the Investors Stockholders Meeting, and their counsel andthe Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the extent it solicitation of proxies in connection with the Capital Event or the Stockholders Meeting which has become materially false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or the Subsidiary or any of their respective affiliates, officers or directors that is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement required to be filed set forth in definitive form and distributed a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly inform the Underwriter thereof. The Company’s Board of Directors shall recommend to the Company’s stockholders as promptly as practicablethat the stockholders vote in favor of the Capital Event at the Stockholders Meeting and take all commercially reasonable action (including, either by mail or by notice without limitation, the hiring of internet access, and in any event within five Business Days after a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Capital Event. If the Company does not obtain Stockholder Approval for the Capital Event at the Stockholders Meeting, the Company shall call a meeting every four (4) months thereafter to seek Stockholder Approval until the date that Stockholder Approval is informed by the staff obtained. No later than two (2) business days following Stockholder Approval of the SEC that they have no further comments Capital Event, the Company shall (i) file with regard the Secretary of State of Delaware a certificate of amendment to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked Certificate of Incorporation to approve effect the transactions Capital Event, which certificate of amendment shall provide that are it shall become immediately effective upon filing (such effective date, the subject “Stockholder Approval Date”) and (ii) issue a press release announcing the effectiveness of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersCapital Event.

Stockholder Approval. Unless The Company shall include a proposal in the NYSE informs definitive proxy statement for its annual stockholder meeting for 2023 (the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied “2023 Annual Meeting”), in a form to be reviewed by prior stockholder approvalsEclipse and its representatives, or because of an exception, a waiver or otherwise) soliciting approval by the Company’s stockholders of an affirmative vote for such meeting for approval of resolutions providing for the transactions that are the subject Company’s issuance of Company Common Stock in excess of the Investor Agreements, within 20 days after Individual Holder Share Cap (as defined in the date Certificate of Designation and Warrant) such that such Individual Holder Share Cap shall no longer apply in accordance with applicable law and the rules and regulations of the Original AgreementNYSE (the “Stockholder Approval”). If the Stockholder Approval is not obtained at the 2023 Annual Meeting, the Company will file shall use commercially reasonable efforts to call a special stockholder meeting within four (4) months of the 2023 Annual Meeting to obtain the Stockholder Approval as contemplated and if the Stockholder Approval is not obtain at such special meeting, the Company shall again include the Stockholder Approval for its annual stockholder meeting for 2024. For each such meeting, the Company shall use commercially reasonable effectors to solicit the stockholders approval of such resolutions in connection with the SEC Stockholder Approval including, without limitation, by (i) including a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s board of directors for stockholders contemplated by this Agreement. If to approve the preliminary Stockholder Approval in the applicable proxy statement has not been filed statement, (ii) using commercially reasonable efforts to ensure a quorum is present at the stockholder meeting, (iii) using commercially reasonable efforts to cause the Company’s officers and directors to vote their shares of Company Common Stock in accordance with the SEC prior to Board of Director’s recommendation at such stockholder meeting and (iv) considering the date reasonable comments of Eclipse and its representatives on the Original Agreement, the Investors proxy materials and their counsel shall have the opportunity to review such preliminary proxy statement any related communications or other materials in advance of the Company filing such preliminary proxy statement connection with the SECmeeting and the Stockholder Approval. For the avoidance of debt, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC pay all expenses incurred by it pursuant to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersthis Section 4.14.

Stockholder Approval. Unless the NYSE informs The Company shall use commercially reasonable efforts to provide each stockholder entitled to vote at a special meeting of stockholders of the Company that (the NYSE rules “Stockholder Meeting”) a proxy statement soliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of resolutions (including Rule 312.03 of the NYSE Listed Company Manual“Stockholder Resolutions”) do not require providing for (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of i) an exception, a waiver or otherwise) approval by amendment to the Company’s stockholders articles of incorporation that would increase the transactions that are the subject number of the Investor Agreements, authorized shares of Common Stock to at least 200,000,000 within 20 days after one year of the date of the Original Agreementshareholder authorization; and (ii) an amendment to the Company’s articles of incorporation to that would authorize the Company to effect a reverse split of its outstanding shares of Common Stock within one year of the date of the shareholder authorization within a range of one share of Common Stock for every two shares of Common Stock to one share of Common Stock for every 40 shares of Common Stock, with the exact reverse split ratio to be decided by the Board of Directors of the Company prior to the effective time of the reverse stock split amendment (such affirmative approval being referred to herein as the “Stockholder Approval”, and the date such Stockholder Approval is obtained, the “Stockholder Approval Date”), and the Company shall use its commercially reasonable efforts to solicit its stockholders’ approval of such Stockholder Resolutions and shall cause the Board of Directors of the Company to recommend to the stockholders that they approve such Stockholder Resolutions. The Company shall use its commercially reasonable efforts to cause the Stockholder Meeting to be promptly called and held not later than the ninetieth (90th) day following the Closing Date. The Buyer agrees to vote all shares of Common Stock it beneficially owns on the record date applicable to the Stockholder Meeting that are eligible to vote in connection with the Stockholder Resolutions in favor of adopting the Stockholder Resolutions. Notwithstanding the foregoing, the Company may obtain the Stockholder Approval through the written consent of holders of a majority of the shares of Common Stock of the Company; provided that in such case the Company will use its commercially reasonable efforts to prepare and file with the SEC a the preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Information Statement in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote 14C to approve the transactions that are the subject of the Investor Agreements, unless, and solely be sent to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations Shareholders of the Company to hold in connection with such written consent no later than the meeting of thirtieth (30th) day following the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors Closing Date and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement Stockholder Approval to be filed in definitive form and distributed to effective no later than the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after ninetieth (90th) day following the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersClosing Date.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original this Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel andwill, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholders.

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules shall (including Rule 312.03 of the NYSE Listed Company Manuala) do as soon as practicable, but not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 later than 30 days after the date of the Original Agreementhereof, the Company will prepare and file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SECCommission with respect to the holding of a stockholders' meeting (the "Stockholder Meeting") for the purpose of obtaining stockholder approval ("Stockholder Approval") of, amongst other things, (i) the issuance of the Series B Preferred Stock and Warrants to the extent required by Applicable Law and NASD rules and regulations, (ii) the amendment and restatement of the Company's Certificate of Incorporation in a manner reasonably satisfactory to the Purchaser and to reflect the corporate governance provided for herein, and to provide comments thereon(iii) more generally, which comments if requested by the Company shall Purchaser, the approval of this Agreement, the other Documents and the transactions contemplated hereby and thereby, (b) promptly call and give due notice of such meeting following the Commission's clearance of such proxy statement and reasonable consideration(c) on or before the fortieth (40th) day following the Commission's clearance of such proxy statement, convene and hold such meeting. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its commercially reasonable best efforts to consult with the Investors and their counsel andobtain such Stockholder Approval, including, but not limited to, responding promptly to the extent it is not unreasonable for it Commission's comments in order to do so, to resolve and comply with all comments obtain clearance of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the such proxy statement. The Company will shall, through its Board of Directors, recommend to its stockholders that Stockholder Approval be given, and the Company shall use its best efforts to cause the stockholders meeting to which the proxy statement relates and at which each member of the Company’s stockholders will be asked 's Board of Directors and all other Key Stockholders to vote their shares of Common Stock to approve the transactions that are items set forth in clause (a) of this Section 5.7. The Company shall otherwise use its best efforts to obtain the subject requisite vote of its stockholders to obtain the Stockholder Approval. The Company shall afford the Purchaser and its counsel an opportunity to review and comment upon any description of the Investor Agreements Purchaser or its Affiliates, this Agreement, the other Documents or the transactions contemplated hereby and thereby set forth in such proxy statement (including all drafts or amendments thereto). The Purchaser shall provide the Company with all necessary information reasonably requested with respect to itself and its Affiliates solely for inclusion by the Company in such proxy statement. The Company shall notify the Purchaser promptly of the receipt of any comments from the Commission or its staff and of any request by the Commission or its staff for amendments or supplements to such proxy statement or for additional information and will supply the Purchaser with copies of all correspondence between the Company or any of its representatives, on the one hand, and the Commission or its staff, on the other hand, with respect to such proxy statement. If at any time prior to such stockholders meeting there shall occur any event that would be required, under the Exchange Act and the rules and regulations thereunder, to be held as promptly as practicable and no more than 40 days after set forth in an amendment or supplement to such proxy statement, the Company distributes the proxy statement will promptly prepare and mail to its stockholdersstockholders such an amendment or supplement.

Stockholder Approval. Unless Cirracor will, as soon as practicable following the NYSE informs execution of the Merger Agreement, call, give notice of, convene and hold a meeting of its stockholders (the “Stockholder Meeting”) for the purpose of obtaining the Cirracor Stockholder Approval. As soon as practicable following the later of the Company that the NYSE rules providing Cirracor (including Rule 312.03 of the NYSE Listed Company Manuali) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders audited financial statements for use in the Proxy Statement (as defined below) or (ii) all reasonably necessary information regarding the Company as required for disclosure in the Proxy Statement, Cirracor shall file with the S.E.C. a preliminary and final definitive proxy statement (such preliminary and final definitive proxy statement, and any amendments or supplements thereto, collectively, the “Proxy Statement”) pursuant to Rule 14a-3 under the Exchange Act, and shall cause the Proxy Statement to be mailed to the holders of the transactions that are Cirracor Stock. Cirracor agrees to provide the subject Company and its counsel with any written or oral comments Cirracor or its counsel may receive from the S.E.C. with respect to such Proxy Statement promptly after the receipt of such comments. Cirracor shall also provide the Company and its counsel a reasonable opportunity to review each of the Investor Agreements, within 20 days after filings relating to the date Proxy Statement prior to its filing with the S.E.C. or dissemination to the holders of the Original Cirracor Stock and to participate, including by way of discussions with the S.E.C., in the response of Cirracor to such comments. The Board of Directors of Cirracor will take all lawful action to regarding such approval, including, without limitation, the timely mailing of the Proxy Statement. At the Stockholder Meeting, the Cirracor Stockholder will vote all of its Cirracor Stock in favor of the Reverse Stock Split, the Merger Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve Merger and the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manualcontemplated thereby. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreementswill, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof following the availability of its audited financial statements, call, give notice of, convene and shall use hold a meeting of its reasonable best efforts to consult with stockholders, or obtain the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments written consent of the staff holders of at least a majority of the SEC promptlyoutstanding Company Stock, and to cause for the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice purpose of internet access, and in any event within five Business Days after obtaining the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersStockholder Approval.

Stockholder Approval. Unless The Company shall seek, and use its best efforts to obtain, on before the NYSE informs date that is the Company that 90th day following the NYSE rules (including Rule 312.03 date of this Agreement or in the event the proxy materials shall be reviewed by the Commission, the 120th day following the date of this Agreement, stockholder approval of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders issuance of the transactions that are Underlying Shares, which approval shall meet the subject requirements of Nasdaq's Rule 4350(i) of Nasdaq set forth in the Investor Agreements, NASD Manual (the "STOCKHOLDER APPROVAL"). The Company shall use its best efforts to call a meeting of stockholders (the "STOCKHOLDER MEETING") to be held within 20 75 days after the date of the Original this Agreement, the Company will shall prepare and file with the SEC a Commission as promptly as practical, but in no event later than 30 days after the date of this Agreement, preliminary proxy statement relating materials which set forth a proposal to a special stockholders meeting at which seek the Stockholder Approval, and the Board of Directors shall recommend approval thereof by the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual's stockholders. The Company will include in shall mail and distribute its proxy materials for the proxy statement the unanimous recommendation of Stockholder Meeting to its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC at least 30 days prior to the date of the Original AgreementStockholder Meeting, shall actively solicit proxies to vote for the Investors and their counsel Stockholder Approval. The Company shall have provide the Purchasers an opportunity to review and comment on such proxy materials by providing (which may be by e-mail) copies of such proxy materials and any revised preliminary proxy statement in advance materials to the Purchasers a reasonable period of the Company time prior to their filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable considerationCommission. The Company will shall provide any comments received the Purchasers (which may be by e-mail) copies of all correspondence from the SEC or to the Investors Commission or its staff concerning the proxy materials for the Stockholder Meeting promptly after the same is sent or received by the Company and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all summaries of any comments of the Commission staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after which the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statementreceives orally promptly after receiving such oral comments. The Company will cause shall furnish to the Purchasers and Purchaser Counsel (which may be by e-mail) a copy of its definitive proxy materials for the Stockholder Meeting and any amendments or supplements thereto promptly after the same are first used, mailed to stockholders meeting to which or filed with the proxy statement relates and at which Commission, shall inform the Company’s stockholders will be asked to approve the transactions that are the subject Purchasers of the Investor Agreements to be held as promptly as practicable progress of solicitation of proxies for such meeting and no more than 40 days after shall inform the Company distributes Purchasers of any adjournment of the proxy statement to its stockholdersStockholder Meeting and shall report the result of the vote of stockholders on such proposition at the conclusion of the Stockholder Meeting.

Stockholder Approval. Unless The Company shall provide each stockholder entitled to vote at either (x) the NYSE informs the Company that the NYSE rules (including Rule 312.03 next annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to or (y) a special meeting of stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company (the “Stockholder Meeting”), which shall be promptly called and held not later than January 15, 2016 (the “Stockholder Meeting Deadline”), a proxy statement, substantially in a form which shall have been previously reviewed by Kxxxxx Xxxx & Wxxxxx LLP, at the expense of the Company but in any event such expense not to hold exceed $5,000 without the meeting prior written approval of the Company’s stockholders contemplated by this Agreement. If ; soliciting each such stockholder's affirmative vote at the preliminary proxy statement has not been filed Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for the approval of the issuance of all of the Securities in compliance with the SEC prior rules and regulations of the Principal Market (without regard to any limitations on conversion or exercise set forth in the Notes or Warrants, respectively)(such affirmative approval being referred to herein as the “Stockholder Approval”, and the date of the Original Agreementsuch Stockholder Approval is obtained, the Investors “Stockholder Approval Date”), and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders' approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to be filed in definitive form and distributed recommend to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statementapprove such resolutions. The Company will cause shall be obligated to seek to obtain the stockholders meeting to which Stockholder Approval by the proxy statement relates and at which Stockholder Meeting Deadline. If, despite the Company’s stockholders will be asked 's reasonable best efforts the Stockholder Approval is not obtained on or prior to approve the transactions that are Stockholder Meeting Deadline, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days once in each of the three subsequent calendar quarters thereafter until such Stockholder Approval is obtained. If, despite the Company's reasonable best efforts the Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company distributes the proxy statement shall cause an additional Stockholder Meeting to its stockholdersbe held semi-annually thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless Each of Company and Parent shall call a meeting of its stockholders to be held as soon as reasonably practicable for the NYSE informs purpose of obtaining the Company that requisite stockholder approval required in connection with the NYSE rules (including Rule 312.03 of Merger, on substantially the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original terms and conditions set forth in this Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with cause such meeting to occur as soon as reasonably practicable. The Board of Directors of Company shall use its reasonable best efforts to obtain from its stockholders the Investors stockholder vote approving the Merger, on substantially the terms and their counsel andconditions set forth in this Agreement, required to consummate the transactions contemplated by this Agreement, and shall recommend such approval except to the extent it is not unreasonable for it expressly permitted under Section 6.10(d). Company shall submit this Agreement to do soits stockholders at the stockholder meeting even if its Board of Directors shall have withdrawn, to resolve modified or qualified its recommendation. The Board of Directors of Company has adopted resolutions approving the Merger, on substantially the terms and comply with all comments of the staff of the SEC promptlyconditions set forth in this Agreement, and directing that the Merger, on such terms and conditions, be submitted to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicablefor their consideration. The Board of Directors of Parent shall use its reasonable best efforts to obtain from its stockholders the stockholder vote approving the issuance of Parent Common Stock in the Merger, either on substantially the terms and conditions set forth in this Agreement, required to consummate the issuance of Parent Common Stock contemplated by mail or by notice of internet accessthis Agreement, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard shall recommend such approval except to the proxy statementextent making such recommendation would cause the Board of Directors of Parent to violate its fiduciary duties to Parent stockholders under applicable law. Parent shall submit the stock issuance proposal to its stockholders at the stockholder meeting even if its Board of Directors shall have withdrawn, modified or qualified its recommendation. The Company will cause Board of Directors of Parent has adopted resolutions approving the stockholders meeting Merger, on substantially the terms and conditions set forth in this Agreement, and directing that the issuance of Parent Common Stock in the Merger, on such terms and conditions, be submitted to which the proxy statement relates and at which the CompanyParent’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersfor their consideration.

Stockholder Approval. Unless the NYSE informs The Company shall use commercially reasonable efforts to provide each stockholder entitled to vote at a special meeting of stockholders of the Company that (the NYSE rules “Stockholder Meeting”) a proxy statement soliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of resolutions (including Rule 312.03 of the NYSE Listed Company Manual“Stockholder Resolutions”) do not require providing for (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of i) an exception, a waiver or otherwise) approval by amendment to the Company’s stockholders articles of incorporation that would increase the transactions that are the subject number of the Investor Agreements, authorized shares of Common Stock to at least 200,000,000 within 20 days after one year of the date of the Original Agreementshareholder authorization; and (ii) an amendment to the Company’s articles of incorporation to that would authorize the Company to effect a reverse split of its outstanding shares of Common Stock within one year of the date of the shareholder authorization within a range of one share of Common Stock for every two shares of Common Stock to one share of Common Stock for every 40 shares of Common Stock, with the exact reverse split ratio to be decided by the Board of Directors of the Company prior to the effective time of the reverse stock split amendment (such affirmative approval being referred to herein as the “Stockholder Approval”, and the date such Stockholder Approval is obtained, the “Stockholder Approval Date”), and the Company shall use its commercially reasonable efforts to solicit its stockholders’ approval of such Stockholder Resolutions and shall cause the Board of Directors of the Company to recommend to the stockholders that they approve such Stockholder Resolutions. The Company shall use its commercially reasonable efforts to cause the Stockholder Meeting to be promptly called and held not later than the ninetieth (90th) day following the Closing Date. Each Buyer agrees to vote all shares of Common Stock it beneficially owns on the record date applicable to the Stockholder Meeting that are eligible to vote in connection with the Stockholder Resolutions in favor of adopting the Stockholder Resolutions. Notwithstanding the foregoing, the Company may obtain the Stockholder Approval through the written consent of holders of a majority of the shares of Common Stock of the Company; provided that in such case the Company will use its commercially reasonable efforts to prepare and file with the SEC a the preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Information Statement in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote 14C to approve the transactions that are the subject of the Investor Agreements, unless, and solely be sent to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations Shareholders of the Company to hold in connection with such written consent no later than the meeting of thirtieth (30th) day following the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors Closing Date and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement Stockholder Approval to be filed in definitive form and distributed to effective no later than the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after ninetieth (90th) day following the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersClosing Date.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original this Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original this Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholders.

Stockholder Approval. Unless (a) The Company agrees to include in its proxy statement prepared and filed with the NYSE informs Commission (the “Proxy Statement”) for the 2020 annual meeting of the stockholders of the Company that (the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual“2020 Stockholder Meeting”) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) proposal for approval by the Company’s stockholders holders of Common Stock that is required under the transactions that are the subject listing standards of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at NASDAQ (and any successor thereto and any other trading market on which the Company’s stockholders will be asked Common Stock is listed), including NASDAQ Stock Market Rule 5635(b) and Rule 5635(d), to approve the transactions that are the subject issuance of Common Stock in excess of the Investor Agreements thresholds set forth in accordance with Rule 312.03 such rules upon exercise of the NYSE Listed Warrants or conversion or redemption of the Series B Convertible Preferred Stock of the Company Manualissued to Purchasers pursuant to this Agreement (the “Stockholder Approval”). The Company will Subject to the directors’ fiduciary duties, the Proxy Statement shall include in the proxy statement recommendation from the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject in favor of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable considerationStockholder Approval. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult solicit from the stockholders proxies in favor of the Stockholder Approval and to obtain the Stockholder Approval. Each Purchaser acknowledges that no votes of the shares of Series B Convertible Preferred Stock sold and issued will be counted toward the Stockholder Approval in compliance with NASDAQ Stock Market Rule 5635. Each Purchaser agrees with the Investors Company (but not with each other) that it shall vote or cause to be voted any shares of Common Stock over which it has voting power as of the record date of such annual meeting in favor of the Stockholder Approval. Each Purchaser and their counsel and, its Affiliates agree to furnish to the extent it is not unreasonable Company all information concerning such Purchaser and its Affiliates as the Company may reasonably request in connection with the preparation and filing of the Proxy Statement and any such annual meeting of the stockholders of the Company. The Company shall respond reasonably promptly to any comments received from the Commission with respect to the Proxy Statement. The Company shall provide to each Purchaser, as promptly as reasonably practicable after receipt thereof, any written comments from the Commission or any written request from the Commission or its staff for it amendments or supplements to do sothe Proxy Statement and shall provide each Purchaser with copies of all correspondence between the Company, on the one hand, and the Commission and its staff, on the other hand, relating to resolve and comply with all the Proxy Statement. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or, in each case, any amendment or supplement thereto) or responding to any comments of the Commission or its staff of the SEC promptlywith respect thereto, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by shall provide the staff of the SEC that they have no further comments Purchasers with regard a reasonable opportunity to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates review and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderscomment on such document or response.

Stockholder Approval. Unless The Company shall seek and use its best efforts to obtain, on or before the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 date which is 120 days after the date Closing Date, the Stockholder Approval of the Original Agreementissuance of the Note, the Interest Notes, the Preferred Shares, the Dividend Shares, the Warrants and the Common Shares. The Company will shall call a meeting of stockholders to be held within 120 days after the Closing Date, shall prepare and file with the SEC a as promptly as practical, but in no event later than 45 days after the Closing Date, preliminary proxy statement relating materials which set forth a proposal to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manualseek such Stockholder Approval and shall recommend approval thereof by its stockholders. The Company will include in shall provide the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the Buyer an opportunity to review and comment on such proxy materials by providing copies of such proxy materials and any revised preliminary proxy statement in advance materials to the Buyer a reasonable period of time prior to their filing with the SEC. The Company filing shall furnish to the Buyer and its counsel a copy of its definitive proxy materials for such preliminary proxy statement meeting of stockholders and any amendments or supplements thereto promptly after the same are mailed to stockholders or filed with the SEC, shall inform the Buyer of the progress of solicitation of proxies for such meeting and shall inform the Buyer of any adjournment of such meeting and shall report the result of the vote of any stockholders on such proposition on the day such vote is taken. If for any reason the Company fails to provide comments thereonobtain such Stockholder Approval, which comments the Company shall give due be required to redeem the Note in accordance with Sections 5.1 and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt 5.2 thereof and shall use its reasonable best efforts to consult the Preferred Shares in accordance with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments Section 11 of the staff Statement of Resolution. As used herein, "Stockholder Approval" shall have the SEC promptly, and to cause the proxy statement meaning to be filed provided or provided in definitive form the Note and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice Statement of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersResolution.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuallisted company rules) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original this Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company ManualAgreements. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the The Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement, either by mail or by notice of internet access. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholders.

Stockholder Approval. Unless Parent will provide each stockholder entitled to vote at a special meeting of stockholders of Parent (the NYSE informs “Stockholders Meeting”), which will be promptly called and held no later than ninety (90) days following the Company that Closing Date (subject to extension for any SEC review) (the NYSE rules (including Rule 312.03 “Stockholder Meeting Deadline”), a proxy statement meeting the requirements of Section 14 of the NYSE Listed Company ManualExchange Act, and the related rules and regulations promulgated thereunder (the “Proxy Statement”) do not require (whether because soliciting each such stockholder’s affirmative vote at the NYSE requirement has been satisfied by prior stockholder approvalsStockholder Meeting for approval of resolutions approving Parent’s ability to issue any of the Milestone Payments, or because portions thereof, in shares of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Parent Common Stock in accordance with Rule 312.03 applicable law, the rules and regulations of the NYSE Listed Company Manual. The Company will include in Exchange, Parent’s certificate of incorporation and by-laws and the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unlessDGCL (“Stockholder Approval”), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company Parent will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its commercially reasonable best efforts to consult with solicit the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments Stockholder Approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement board of directors of Parent to be filed in definitive form and distributed recommend to the Companystockholders that they approve such resolutions. For the avoidance of doubt, none of the Members receiving Parent Common Stock as Closing Merger Consideration will be entitled to vote at any such Stockholders Meeting. Parent will keep Member Representative apprised of the status of matters relating to the Proxy Statement and the Stockholders Meeting, including promptly furnishing Member Representative and its counsel with copies of notices or other communications related to the Proxy Statement, the Stockholders Meeting or the transactions contemplated hereby received by Parent from the SEC or the Exchange. If, despite Parent’s stockholders as promptly as practicablecommercially reasonable efforts, either by mail Stockholder Approval is not obtained on or by notice of internet accessprior to the Stockholder Meeting Deadline, and in any event within five Business Days after the Company is informed by the staff of the SEC that they shall not thereafter have no further comments with regard any obligation to the proxy statement. The Company will cause the stockholders meeting continue to which the proxy statement relates and at which the Company’s stockholders will be asked try to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersobtain such approval.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation shall duly take all lawful action to call, give notice of, convene and hold a meeting of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable following the date upon receipt thereof which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the Required Company Vote and, subject to Section 7.3(b), shall take all lawful action to solicit the adoption of this Agreement by such stockholders. The board of directors of the Company shall recommend adoption of this Agreement by the stockholders of the Company (the “Company Recommendation”) in the Proxy Statement/Prospectus and shall use its reasonable best efforts not directly or indirectly (x) withdraw, modify or qualify in any manner adverse to consult Acquiror such recommendation or (y) take any other action or make any other public statement in connection with the Investors Company Stockholders Meeting, or in reference to an Acquisition Proposal (as defined in Section 7.4(b)), that is inconsistent with such recommendation (any action or public statement described in clause (x) or (y) being referred to as a “Change in Company Recommendation”), except as and their counsel and, to the extent it is not unreasonable for it expressly permitted by Section 7.3(b). Notwithstanding any Change in Company Recommendation, this Agreement shall be submitted to do so, to resolve and comply with all comments the stockholders of the staff Company at the Company Stockholders Meeting for the purpose of voting on the adoption of this Agreement and nothing contained herein shall be deemed to relieve the Company of such obligation; provided, however, that if the board of directors of the SEC promptlyCompany shall have effected a Change in Company Recommendation, and to cause then the proxy statement to be filed in definitive form and distributed board of directors of the Company may submit this Agreement to the Company’s stockholders without recommendation (although the resolutions adopting this Agreement as promptly as practicableof the date hereof may not be rescinded or amended), either by mail or by notice in which event the board of internet access, and in any event within five Business Days after directors of the Company is informed by may communicate the staff basis for its lack of the SEC that they have no further comments with regard a recommendation to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked in the Proxy Statement/Prospectus and the Form S-4 or an appropriate amendment or supplement thereto to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersextent required by applicable Law.

Stockholder Approval. Unless the NYSE informs the (i) The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special or annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject of "Stockholder Meeting"), which initially shall be promptly called and held not later than seventy-five (75) calendar days following the Investor AgreementsClosing Date (the "Stockholder Meeting Deadline"), within 20 days after the date of the Original Agreementa proxy statement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include substantially in the proxy statement form which has been previously reviewed by the unanimous recommendation of its Board of Directors that Buyers and Xxxxxxx Xxxx & Xxxxx LLP at the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting expense of the Company’s stockholders contemplated by this Agreement. If , soliciting each such stockholder's affirmative vote at the preliminary proxy statement has not been filed with Stockholder Meeting for approval of resolutions (the SEC prior "Resolutions") providing for the increase in the authorized Common Stock from 98,000,0000 shares to 300,000,000 shares (such affirmative approval being referred to herein as the "Stockholder Approval" and the date of the Original Agreementsuch approval is obtained, the Investors "Stockholder Approval Date"), and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders' approval of the staff of the SEC promptly, Resolutions and to cause the proxy statement Board of Directors of the Company to be filed in definitive form and distributed recommend to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to approve the proxy statementResolutions. The Company will cause shall be obligated to seek to obtain the stockholders meeting to which Stockholder Approval by the proxy statement relates and at which Stockholder Meeting Deadline. If, despite the Company’s stockholders will be asked 's reasonable best efforts the Stockholder Approval is not obtained on or prior to approve the transactions that are Stockholder Meeting Deadline, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after each twelve month period thereafter until such Stockholder Approval is obtained, provided that if the Board of Directors of the Company distributes does not recommend to the proxy statement stockholders that they approve the Resolutions at any such Stockholder Meeting and the Stockholder Approval is not obtained, or the Notes are no longer outstanding, the Company shall cause an additional Stockholder Meeting to its stockholdersbe held each calendar quarter thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless The Company shall provide each stockholder entitled to vote at either (x) the NYSE informs next annual meeting of stockholders of the Company that the NYSE rules or (including Rule 312.03 y) a special meeting of stockholder of the NYSE Listed Company Manual) do (the “Stockholder Meeting”), which shall be promptly called and held not require later than September 15, 2008 (whether because the NYSE requirement “Stockholder Meeting Deadline”), a proxy statement, substantially in the form which has been satisfied previously reviewed by prior stockholder approvalsthe Buyers and a counsel of their choice, or because at the expense of an exceptionthe Company not to exceed $10,000, a waiver or otherwisesoliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) approval by providing for the Company’s stockholders issuance of all of the transactions that are Securities as described in the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Transaction Documents in accordance with Rule 312.03 applicable law and the rules and regulations of the NYSE Listed Principal Market (such affirmative approval being referred to herein as the “Stockholder Approval”), and the Company Manual. The Company will include in shall use its best efforts to solicit its stockholders’ approval of such resolutions and to cause the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold recommend to the meeting of stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders contemplated by this Agreement. If reasonable best efforts the preliminary proxy statement has Stockholder Approval is not been filed with the SEC obtained on or prior to the date of the Original AgreementStockholder Meeting Deadline, the Investors and their counsel Company shall have cause an additional Stockholder Meeting to be held each twelve month period thereafter until such Stockholder Approval is obtained, provided that if the opportunity to review such preliminary proxy statement in advance Board of Directors of the Company filing does not recommend to the stockholders that they approve the Resolutions at any such preliminary proxy statement with Stockholder Meeting and the SECStockholder Approval is not obtained, and to provide comments thereonor the Notes are no longer outstanding, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderseach calendar quarter thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless 11.1 The Company hereby agrees to seek the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days Sixth Amendment Stockholder Approval. As promptly as practicable after the date execution of the Original Agreementthis Amendment, the Company will shall file with the SEC a preliminary proxy information statement relating related to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unlessSixth Amendment Stockholder Approval, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy thereafter mail a definitive information statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice in accordance with the rules of internet access, and in the SEC. If for any event within five Business Days after reason the Company is informed cannot obtain the Sixth Amendment Stockholder Approval via written consent (including any objection to such process by the staff of the SEC Exchange), the Company shall hold its annual meeting of stockholders or a special meeting of stockholders (each, the “Sixth Amendment Stockholder Meeting”) at the earliest practical date following the determination that they have no further comments with regard to the proxy statement. The Sixth Amendment Stockholder Approval by written consent is not feasible (and in event not later than 60 days after the date hereof (the “Stockholder Meeting Deadline”), and the Company will cause the stockholders meeting to which the shall file a preliminary and definitive proxy statement relates for the Sixth Amendment Stockholder Meeting as promptly as practicable thereafter and at which shall hold the Sixth Amendment Stockholder Meeting for the purpose of obtaining the Sixth Amendment Stockholder Approval, with the recommendation of the Company’s board of directors to the Company’s stockholders will that such stockholders vote in favor of the matters contemplated by the Sixth Amendment Stockholder Approval, and the Company shall solicit proxies from its stockholders in connection therewith in the same manner as the Company has historically solicited proxies at its annual meetings of stockholders for management proposals in such proxy statements, and all management-appointed proxyholders shall vote their proxies in favor of such matters. If, despite the Company's reasonable best efforts the Sixth Amendment Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional stockholder meeting to be asked held within 90 days after the Stockholder Meeting Deadline. If, despite the Company's reasonable best efforts the Sixth Amendment Stockholder Approval is not obtained at such subsequent stockholder meeting, the Company shall cause an additional stockholder meeting to be held semi-annually thereafter until the Sixth Amendment Stockholder Approval is obtained. In accordance with the Company’s bylaws and the Listing Rules, the voting standard at the Sixth Amendment Stockholder Meeting for the proposals to approve the transactions that are matters contemplated by the Sixth Amendment Stockholder Approval will be the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter. Further and in accordance with the Listing Rules, Purchaser and its Affiliates will be permitted to vote all shares of the Investor Agreements to be held Company’s common stock owned by them as promptly as practicable and no more than 40 days after of the Company distributes record date for the proxy statement to its stockholdersSixth Amendment Stockholder Meeting at such meeting on the matters contemplated by the Sixth Amendment Stockholder Approval.

Stockholder Approval. Unless (a) Subject to Section 4.4(c), the NYSE informs Company shall use its Reasonable Best Efforts to obtain, as promptly as practicable following receipt of the California Permit or, if not received, the effective date of the Registration Statement (as hereinafter defined), the Requisite Stockholder Approval, either at a special meeting of stockholders or pursuant to a written stockholder consent, all in accordance with the applicable requirements of both the Delaware General Corporation Law and California General Corporation Law. In connection with such special meeting of stockholders or written stockholder consent, the Company shall provide to its stockholders the Disclosure Statement, which shall include (A) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Company Stockholders, the escrow arrangements and the authority of the Representative, subject to Section 4.4(c), the unanimous recommendation of the Board of Directors of the Company that the NYSE rules (including Rule 312.03 Company's stockholders adopt and approve this Agreement and the Merger and, subject to Section 4.4(c), the conclusion of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, Merger is fair and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations best interests of the Company to hold and its stockholders, and a statement that the meeting adoption of this Agreement by the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing shall constitute approval of such preliminary proxy terms) and (B) a statement that appraisal rights are available for the Company Shares pursuant to Section 262 of the Delaware General Corporation Law and a copy of such Section 262. Each of the Company and the Buyer agrees to cooperate with the SECother in the preparation of the Disclosure Statement, including, without limitation, providing promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Disclosure Statement, and to provide comments thereon, which comments cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Disclosure Statement. The Buyer and the Company shall give due each use Reasonable Best Efforts to cause the Disclosure Statement to comply with applicable federal and reasonable considerationstate securities laws requirements. The Company will provide promptly advise the Buyer, and the Buyer will promptly advise the Company, in writing if at any comments received from the SEC time prior to the Investors Effective Time either the Company or the Buyer, as applicable, shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Disclosure Statement in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. The Company agrees not to distribute the Disclosure Statement until the Buyer has had a reasonable opportunity to review and comment on the Disclosure Statement and the Disclosure Statement has been approved by the Buyer (which approval may not be unreasonably withheld, conditioned or delayed). If the Requisite Stockholder Approval is obtained (i) by means of a written consent, the Company shall send, (X) pursuant to Section 228 and Section 262(d) of the Delaware General Corporation Law, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the stockholders of the Company and that appraisal rights are available for their counsel Company Shares pursuant to Section 262 of the Delaware General Corporation Law (which notice shall include a copy of such Section 262) and (Y) pursuant to Chapter 13 of the California General Corporation Law, as promptly as practicable upon receipt thereof and shall use its reasonable best efforts but not later than 10 days after the date on which the Requisite Stockholder Approval was obtained, a notice to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments stockholders of the staff Company entitled to vote on this Agreement and the Merger that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the stockholders of the SEC promptlyCompany and that dissenters' rights are available for their Company Shares pursuant to Chapter 13 of the California General Corporation Law, which notice shall be accompanied by a copy of Sections 1300-1304 of the California General Corporation Law, a statement of the price determined by the Company to represent the fair market value of their Company Shares and to cause a brief description of the proxy statement procedure to be filed in definitive form and distributed followed if such stockholder desires to exercise its dissenters' rights (the Company’s stockholders as promptly as practicable"California Dissenters' Rights Notice), either by mail or by notice (ii) at a special meeting of internet accessstockholders, and in any event within five Business Days after then the Company is informed by shall send the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held California Dissenters' Rights Notice as promptly as practicable and no more but not later than 40 10 days after the date on which the Requisite Stockholder Approval was obtained. The Company distributes shall promptly inform the proxy statement to its stockholdersBuyer of the date on which each such notice, if applicable, was sent.

Stockholder Approval. Unless (a) As promptly as reasonably practicable after the NYSE informs execution of this Agreement, and in any event no later than the first to occur of (x) the thirtieth (30th) day following the date on which the Company that receives the NYSE rules Target Financial Statements, and (including Rule 312.03 y) the fifteenth (15th) day following the Closing Date, the Company shall prepare the Proxy Statement in preliminary form and file it with the SEC. The Board of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by Directors shall recommend to the Company’s stockholders that the holders of the Common Stock approve the transactions that are contemplated hereunder and shall include such recommendation in the subject Proxy Statement. The Purchaser shall provide to the Company all information concerning the Purchaser and its Affiliates as may be reasonably requested by the Company in connection with the Proxy Statement and shall otherwise assist and cooperate with the Company in the preparation of the Investor Agreements, within 20 days after Proxy Statement and the date resolution of any comments thereto received from the SEC. Each of the Original AgreementCompany and the Purchaser shall promptly correct any information provided by it for use in the Proxy Statement if and to the extent such information shall have become false or misleading in any material respect. Subject to Sections 5.3, the Company will file with shall notify the Purchaser promptly upon the receipt of any comments from the SEC a preliminary proxy statement relating and of any request by the SEC for amendments or supplements to a special stockholders meeting at which the Company’s stockholders will be asked Proxy Statement and shall supply the Purchaser with copies of all written correspondence between the Company or any of its representatives, on the one hand, and the SEC, on the other hand, with respect to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company ManualProxy Statement. The Company will include in the proxy statement the unanimous recommendation of shall use its Board of Directors that the Company’s stockholders vote reasonable best efforts to approve the transactions that are the subject of the Investor Agreements, unless, and solely respond as promptly as reasonably practicable to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC concerning the Proxy Statement and to resolve such comments with the Investors and their counsel as promptly as practicable upon receipt thereof SEC, and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement Proxy Statement to be filed in definitive form and distributed disseminated to the Company’s its stockholders as promptly as practicablereasonably practicable after the resolution of any such comments. Prior to the filing of the Proxy Statement (or any amendment or supplement thereto) or any dissemination thereof to the stockholders of the Company, either by mail or by notice of internet accessresponding to any comments from the SEC with respect thereto, the Company shall provide the Purchaser with a reasonable opportunity to review and to propose comments on such document or response, which the Company shall consider in good faith. The Company shall inform Legal Counsel promptly (and in any event within five Business Days after the Company is informed by the staff two business days) of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject receipt of the Investor Agreements to be held as promptly as practicable and no more than 40 days after Target Financial Statements (or the Company distributes purported delivery of the proxy statement to its stockholdersTarget Financial Statements by Solara Holdings, LLC).

Stockholder Approval. Unless After the NYSE informs date of this Agreement and on or before the 45th day following the Public Announcement (the “Stockholder Meeting Deadline”), the Company that shall, at its own expense, hold an annual or special meeting of stockholders (the NYSE rules (including Rule 312.03 “Stockholder Meeting”), the proxy statement for which shall solicit the affirmative approval of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject Company’s issuance of all of the Investor Agreements, within 20 days after Milestone Securities (and shares of Common Stock issuable upon conversion or exercise thereof) at the date Alternative Milestone Price (based on the formula set forth in the definition of Alternative Milestone Price) to the Original extent the Milestone Price is the Alternative Milestone Price pursuant to the terms of this Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with applicable law and Nasdaq Listing Rule 312.03 of 5635 (such affirmative approval being referred to herein as the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless“Stockholder Approval”), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with solicit the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, Stockholder Approval and to cause the proxy statement Board of Directors of the Company to be filed in definitive form and distributed recommend the Stockholder Approval to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after entitled to vote at the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statementStockholder Meeting. The Company will cause shall be obligated to use its reasonable best efforts to obtain the stockholders meeting to which Stockholder Approval by the proxy statement relates and at which Stockholder Meeting Deadline. If, despite the Company’s stockholders will be asked reasonable best efforts the Stockholder Approval is not obtained on or prior to approve the transactions that are Stockholder Meeting Deadline, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after every three (3) months thereafter until such Stockholder Approval is obtained. Notwithstanding anything to the contrary contained in this Section 4.8, the Company distributes shall have no obligation to solicit or obtain the proxy statement Stockholder Approval if the Milestone Price is determined to its stockholdersbe the Initial Closing Price rather than the Alternative Milestone Price, and the Company shall have no obligation to solicit or obtain the Stockholder Approval after March 31, 2020.

Stockholder Approval. Unless (a) The Company shall use its Reasonable Best Efforts to obtain, immediately following the NYSE informs execution and delivery of this Agreement, the Requisite Stockholder Approval, either at a special meeting of stockholders or pursuant to a written stockholder consent, all in accordance with the applicable requirements of the DGCL. In connection with such special meeting of stockholders or written stockholder consent, the Company shall provide to its stockholders (promptly after the date hereof) the Disclosure Statement, which shall include (A) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Company Holders, the escrow arrangements and the authority of the Holder Agent, and a statement that the adoption of this Agreement by the stockholders of the Company shall constitute approval of such terms), and (B) a statement that appraisal or dissenters’ rights are available for the Company Shares pursuant to Section 262 of the DGCL and a correct and complete copy of such Section 262. The Buyer agrees to reasonably cooperate with the Company in the preparation of the Disclosure Statement. The Company agrees not to distribute the Disclosure Statement until the Buyer has had a reasonable opportunity to review and comment on the Disclosure Statement and the Disclosure Statement has been approved by the Buyer (which approval may not be unreasonably withheld, conditioned or delayed). If the Requisite Stockholder Approval is obtained by means of a written consent, the Company shall send, pursuant to Sections 228 and 262(d) of the DGCL, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval Merger were adopted and approved by the Company’s stockholders of the transactions Company and that appraisal rights are the subject available for their Company Shares pursuant to Section 262 of the Investor AgreementsDGCL (which notice shall include a correct and complete copy of such Section 262), within 20 days after and shall promptly inform the Buyer of the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at on which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manualsuch notice was sent. The Company will Company, acting through its Board of Directors, shall include in the proxy statement Disclosure Statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting vote in favor of the Company’s stockholders contemplated by adoption of this Agreement. If Agreement and the preliminary proxy statement has not been filed with the SEC prior to the date approval of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersMerger.

Stockholder Approval. Unless If the NYSE informs the Company that the NYSE rules (including Rule 312.03 Additional Closing is consummated, then prior to its next annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreementstockholders, the Company will shall prepare and file with the SEC Commission a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company relating to hold such annual meeting that will include, among other things, the meeting solicitation of the Company’s stockholders contemplated by this Agreement. If for the preliminary proxy statement has not been filed with ratification of the SEC prior issuance and sale of the Additional Purchased Shares to the date of Purchasers (the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration“Proxy Statement”). The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement Proxy Statement to be filed in definitive form approved by the Commission and distributed mailed to the Company’s stockholders prior to such annual meeting. The Purchasers shall furnish all information concerning themselves as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by may reasonably request in connection with such actions and the staff preparation of the SEC that they have no further comments with regard to the proxy statementProxy Statement. The Company will shall cause the Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of the Exchange Act, including Section 14(a) thereof and the respective regulations promulgated thereunder and the rules and regulations of Nasdaq. The Proxy Statement shall include the unconditional recommendation of the Board of Directors of the Company to the stockholders meeting of the Company that they vote, as required by Nasdaq, in favor of the ratification of the issuance of Additional Purchased Shares. The Company shall use reasonable efforts (through its agents or otherwise) to which solicit from its stockholders proxies in favor of the proxy statement relates and at which ratification of the issuance Additional Purchased Shares. If the Company’s stockholders will be asked to approve the transactions that are the subject ratify such issuance and sale of the Investor Agreements Additional Purchased Shares to be held as promptly as practicable the Purchasers, then Section 5.1 shall automatically terminate and no more than 40 days after the Company distributes the proxy statement to its stockholderstherein shall be irrevocably terminated.

Stockholder Approval. Unless the NYSE informs the (i) The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special or annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor AgreementsCompany ("Stockholder Meeting"), within 20 days which shall be promptly called and held as soon as commercially and legally practicable after the date of Closing Date, a proxy statement, at the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting expense of the Company’s stockholders contemplated by this Agreement. If , soliciting each such stockholder's affirmative vote at the preliminary proxy statement has not been filed with Stockholder Meeting for approval of resolutions (the SEC prior "Resolutions") providing for the increase in the authorized Common Stock to a number sufficient to enable the conversion in full of the Debentures and exercise in full of the Warrants (such approval being referred to herein as the "Stockholder Approval" and the date of such approval is duly obtained being referred to as the Original Agreement“Stockholder Approval Date”), the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders' approval of the staff of the SEC promptly, Resolutions and to cause the proxy statement Board of Directors of the Company to be filed in definitive form recommend to the stockholders that they approve the Resolutions. Upon receiving Stockholder Approval and distributed the Company filing with the Nevada Secretary of State an appropriate Certificate of Amendment to the Company’s stockholders as promptly as practicable, either by mail or by notice Certificate of internet access, and in any event within five Business Days after the Company is informed by the staff Incorporation effectuating an increase of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders authorized Common Stock, the Debentures shall be eligible for conversion into the Conversion Shares and the Warrants shall be exercisable into the Warrant Shares. If, despite the Company's reasonable best efforts the Stockholder Approval is not obtained at the Stockholder Meeting, the Debentures will not be asked to approve convertible into the transactions that are Conversion Shares and the subject of Warrants will not be exercisable into the Investor Agreements to be held Warrant Shares until such time as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersStockholder Approval is later obtained.

Stockholder Approval. Unless (a) As promptly as reasonably practicable after the NYSE informs execution of this Agreement, and in any event no later than the first to occur of (x) 30th day following the date upon which the Company that receives the NYSE rules Target Financial Statements and (including Rule 312.03 y) the 15th day following the Closing, the Company shall prepare the Proxy Statement in preliminary form and file it with the SEC. The Board of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by Directors shall recommend to the Company’s stockholders that the holders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to Common Stock approve the transactions that are contemplated hereunder and shall include such recommendation in the subject Proxy Statement. The Purchaser shall provide to the Company all information concerning the Purchaser and its respective Affiliates as may be reasonably requested by the Company in connection with the Proxy Statement and shall otherwise assist and cooperate with the Company in the preparation of the Investor Agreements in accordance with Rule 312.03 Proxy Statement and the resolution of any comments thereto received from the SEC. Each of the NYSE Listed Company Manualand the Purchaser shall promptly correct any information provided by it for use in the Proxy Statement if and to the extent such information shall have become false or misleading in any material respect. The Company will include in shall notify the proxy statement Purchaser promptly upon the unanimous recommendation receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Proxy Statement and shall supply the Purchaser with copies of all written correspondence between the Company or any of its Board of Directors that representatives, on the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unlessone hand, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and on the other hand, with respect to provide comments thereon, which comments the Company shall give due and reasonable considerationProxy Statement. The Company will provide shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments received from the SEC concerning the Proxy Statement and to resolve such comments with the Investors and their counsel as promptly as practicable upon receipt thereof SEC, and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement Proxy Statement to be filed in definitive form and distributed disseminated to the Company’s its stockholders as promptly as practicablereasonably practicable after the resolution of any such comments. Prior to the filing of the Proxy Statement (or any amendment or supplement thereto) or any dissemination thereof to the stockholders of the Company, either by mail or by notice of internet accessresponding to any comments from the SEC with respect thereto, the Company shall provide the Purchaser with a reasonable opportunity to review and to propose comments on such document or response, which the Company shall consider in good faith. The Company shall inform the Purchaser promptly (and in any event within five two Business Days after the Company is informed by the staff Days) of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject receipt of the Investor Agreements to be held as promptly as practicable and no more than 40 days after Target Financial Statements (or the Company distributes purported delivery of the proxy statement to its stockholdersTarget Financial Statements by Solara Holdings, LLC).

Stockholder Approval. Unless the NYSE informs the (i) The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special or annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject of "STOCKHOLDER MEETING"), which initially shall be promptly called and held not later than April 30, 2007 (the Investor Agreements"STOCKHOLDER MEETING DEADLINE"), within 20 days after the date of the Original Agreementa proxy statement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include substantially in the proxy statement form which has been previously reviewed by the unanimous recommendation of its Board of Directors that Buyers and Xxxxxxx Xxxx & Xxxxx LLP at the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting expense of the Company’s stockholders contemplated by this Agreement. If , soliciting each such stockholder's affirmative vote at the preliminary proxy statement has not been filed with Stockholder Meeting for approval of resolutions (the SEC prior "RESOLUTIONS") providing for the increase in the authorized Common Stock from 110,000,000 shares to at least 150,000,000 shares (such affirmative approval being referred to herein as the "STOCKHOLDER APPROVAL" and the date of the Original Agreementsuch approval is obtained, the Investors "STOCKHOLDER APPROVAL DATE"), and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders' approval of the staff of the SEC promptly, Resolutions and to cause the proxy statement Board of Directors of the Company to be filed in definitive form and distributed recommend to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to approve the proxy statementResolutions. The Company will cause shall be obligated to seek to obtain the stockholders meeting to which Stockholder Approval by the proxy statement relates and at which Stockholder Meeting Deadline. If, despite the Company’s stockholders will be asked 's reasonable best efforts the Stockholder Approval is not obtained on or prior to approve the transactions that are Stockholder Meeting Deadline, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after each six month period thereafter until such Stockholder Approval is obtained, provided that if the Board of Directors of the Company distributes does not recommend to the proxy statement stockholders that they approve the Resolutions at any such Stockholder Meeting and the Stockholder Approval is not obtained, or the Notes are no longer outstanding, the Company shall cause an additional Stockholder Meeting to its stockholdersbe held each calendar quarter thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days As soon as practicable after the date execution and delivery of the Original this Agreement, the Company will file shall take all action necessary in accordance with the SEC a preliminary proxy statement relating to a special stockholders meeting at which DGCL and the Company’s stockholders will be asked certificate of incorporation and bylaws to approve obtain a duly executed counterpart to the transactions that are Written Consent from each holder of Common Shares and the subject of the Investor Agreements Preferred Shares (on an as-converted basis in accordance with Rule 312.03 of the NYSE Listed Charter), voting together as a single class, constituting the Approving Stockholders, and the Company Manualshall promptly deliver such executed documents to Buyer. The Company will materials submitted to such holders in connection with soliciting the Written Consent and Support Agreement shall include in the proxy statement the unanimous recommendation of its the Company’s Board of Directors that such holders vote their shares of Common Shares and the Company’s stockholders vote to approve Preferred Shares (on an as-converted basis in accordance with the Charter), voting together as a single class, in favor of the adoption of this Agreement, the Merger and the transactions that are contemplated hereby. If any holder of Common Shares and the subject Preferred Shares (on an as-converted basis in accordance with the Charter), voting together as a single class, does not sign the Written Consent by 11:59 p.m., New York time, on the Business Day following the date hereof, then promptly thereafter (but in any event no later than ten days after the receipt by the Company of the Investor Agreements, unless, and solely to the extentMerger Consent), the Board determines, after consultation with counsel, that in Company shall prepare and deliver to each such holder an information statement (the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification “Information Statement”) containing (a) notice of the recommendation receipt of the Board shall not affect the obligations Merger Consent, (b) notice of the Company to hold the meeting of the Company’s stockholders transactions contemplated by this Agreement. If Agreement and the preliminary proxy statement has not been filed with the SEC prior other Transaction Agreements and (c) such other information as may be required to the date be included therein by applicable Law, including Sections 228(e) and 262 of the Original Agreement, the Investors DGCL. Buyer and their its counsel shall have the be given a reasonable opportunity to review such preliminary proxy statement in advance and comment on the Information Statement and any amendment or supplement thereto before they are mailed to the holders of Common Shares and the Company filing such preliminary proxy statement with the SECPreferred Shares, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with consider in good faith all comments of the staff Buyer and its counsel in connection therewith; provided, however, that Buyer shall in no way be responsible for any of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff content of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersInformation Statement except for information supplied in writing by Buyer expressly for inclusion therein.

Stockholder Approval. Unless (a) Parent shall call a meeting of its stockholders (the NYSE informs “Parent Meeting”) for the Company that purpose of obtaining the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior requisite stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file required in connection with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject issuance of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include Parent Common Stock in the proxy statement Merger (the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof “Parent Stockholder Approval”) and shall use its reasonable best efforts to consult with the Investors and their counsel and, cause such meeting to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders occur as promptly soon as practicable, either by mail or by notice of internet access, and in any event within five Business Days after 35 days following the date on which the Proxy Statement is cleared by the SEC, which efforts shall include the actions set forth in Section 6.3(b); provided that Parent shall have the right to delay the Parent Meeting as necessary (i) if Parent has not on the date of the Parent Meeting received proxies representing a sufficient number of shares of Parent Common Stock to obtain the Parent Stockholder Approval, (ii) if Parent reasonably determines that it is legally required to provide new or additional information to its stockholders and to provide its stockholders with additional time to review such information prior to the Parent Meeting or (iii) by up to ten business days if Parent has provided to the Company is informed by the staff written notice of the SEC that they have no further comments with regard its determination to effect a Change of Recommendation ten or fewer business days prior to the proxy statementParent Meeting. The Company will cause Board of Directors of Parent shall use its reasonable best efforts to obtain from its stockholders the stockholders meeting Parent Stockholder Approval. Parent shall submit the proposal to which obtain the proxy statement relates Parent Stockholder Approval at the Parent Meeting even if its Board of Directors shall have withdrawn, modified or qualified its recommendation. The Board of Directors of Parent has adopted resolutions approving the Merger and at which the Companyissuance of Parent Common Stock in the Merger and directing that a proposal to issue the Parent Common Stock in connection with the Merger be submitted to the Parent’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersfor their consideration.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts Reasonable Best Efforts to consult with the Investors and their counsel andobtain, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, the Requisite Stockholder Approval, either by mail at a special meeting of stockholders or by notice pursuant to a written stockholder consent, all in accordance with the applicable requirements of internet accessthe Delaware General Corporation Law. In connection with such special meeting of stockholders or written stockholder consent, the Company shall provide to its stockholders the Disclosure Statement, which shall include (A) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Indemnifying Stockholders, the escrow arrangements and the authority of the Indemnification Representatives, and in any event within five Business Days after a statement that the adoption of this Agreement by the stockholders of the Company is informed by the staff shall constitute approval of such terms), (B) all of the SEC information required by Rule 502(b)(2) of Regulation D under the Securities Act (provided that they have no further comments the Buyer shall provide the pertinent Buyer information required by such provision) and (C) a statement that appraisal rights are available for the Company Shares pursuant to Section 262 of the Delaware General Corporation Law and a copy of such Section 262. The Buyer agrees to cooperate with regard to the proxy statementCompany in the preparation of the Disclosure Statement. The Company will cause agrees not to distribute the Disclosure Statement until the Buyer has had a reasonable opportunity to review and comment on the Disclosure Statement and the Disclosure Statement has been approved by the Buyer (which approval may not be unreasonably withheld, conditioned or delayed). If the Requisite Stockholder Approval is obtained by means of a written consent, the Company shall send, pursuant to Sections 228 and 262(d) of the Delaware General Corporation Law, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Company and that appraisal rights are available for their Company Shares pursuant to be held as Section 262 of the Delaware General Corporation Law (which notice shall include a copy of such Section 262), and shall promptly as practicable and no more than 40 days after inform the Company distributes Buyer of the proxy statement to its stockholdersdate on which such notice was sent.

Stockholder Approval. Unless (a) As expeditiously as possible following the NYSE informs the Company that the NYSE rules execution of this Agreement and in any event within seven (including Rule 312.03 of the NYSE Listed Company Manual7) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days business day after the date execution of the Original this Agreement, the Company will file with shall mail the SEC Disclosure Statement, in a preliminary proxy statement form reasonably acceptable to the Buyer, to the Company Stockholders. The Disclosure Statement shall include (i) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the indemnification obligations of the Company to hold Stockholders, the meeting escrow arrangements and the authority of the Company’s Representative, and a statement that the adoption of this Agreement by the stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing shall constitute approval of such preliminary proxy terms), (ii) a statement with the SEC, and to provide comments thereon, which comments that appraisal rights are available for the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC Shares pursuant to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments Section 262 of the staff Delaware General Corporation Law and a copy of such Section 262 and (iii) such other information regarding the SEC promptlyBuyer, including its business, its financial statements and to cause the proxy statement to be filed in definitive form and distributed to Buyer Common Stock, as is required by Rule 502 of Regulation D under the Company’s stockholders Securities Act. As expeditiously as promptly as practicable, either by mail or by notice possible following the execution of internet accessthis Agreement, and in any event within five Business Days one (1) business day after the execution of this Agreement, the Company shall use Reasonable Best Efforts to secure and cause to be filed with the Company consents from Company Stockholders necessary to secure the Requisite Stockholder Approval, which consents shall be in a form that is informed by reasonably acceptable to the staff Buyer. As expeditiously as possible following the receipt of the SEC that they have no further comments with regard Requisite Stockholder Approval, the Company shall deliver to the proxy statementBuyer a certificate executed on behalf of the Company by its Secretary and certifying that the Requisite Stockholder Approval has been obtained. The Company will cause shall also send, pursuant to Sections 228 and 262(d) of the Delaware General Corporation Law, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Company and that appraisal rights are available for their Company Shares pursuant to be held as Section 262 of the Delaware General Corporation Law (which notice shall include a copy of such Section 262), and shall promptly as practicable and no more than 40 days after inform the Company distributes Buyer of the proxy statement to its stockholdersdate on which such notice was sent.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts Reasonable Best Efforts to consult with the Investors and their counsel andobtain, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, the Requisite Stockholder Approval, either by mail at a special meeting of stockholders or by notice pursuant to a written stockholder consent, all in accordance with the applicable requirements of internet accessthe Washington Business Corporation Act. In connection with such special meeting of stockholders or written stockholder consent, the Company shall provide to its stockholders a written proxy or information statement (the "Disclosure Statement") which includes (A) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Company Stockholders, the escrow arrangements and the authority of the Indemnification Representatives, and in any event within five Business Days after a statement that the approval of this Agreement by the stockholders of the Company is informed by the staff shall constitute approval of such terms), (B) all of the SEC information required by Rule 502(b)(2) of Regulation D under the Securities Act and (C) a statement that they have no further comments dissenters' rights are available for the Company Shares pursuant to RCW 23B.13 of the Washington Business Corporation Act and a copy of such RCW 23B.13. The Buyer agrees to cooperate with regard to the proxy statementCompany in the preparation of the Disclosure Statement. The Company will cause agrees not to distribute the Disclosure Statement until the Buyer has had a reasonable opportunity to review and comment on the Disclosure Statement and the Disclosure Statement has been approved by the Buyer (which approval may not be unreasonably withheld or delayed). If the Requisite Stockholder Approval is obtained by means of a written consent, the Company shall send, pursuant to RCW 23B.07.040 and RCW 23B.13.220(2) of the Washington Business Corporation Act, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the Merger were approved by the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Company and that dissenters' rights are available for their Company Shares pursuant to be held as RCW 23B.13 of the Washington Business Corporation Act (which notice shall include a copy of such RCW 23B.13), and shall promptly as practicable and no more than 40 days after inform the Company distributes Buyer of the proxy statement to its stockholdersdate on which such notice was sent.

Stockholder Approval. Unless Within ten business days following the NYSE informs parties’ execution and delivery of this Agreement, the Company that shall prepare and file with the NYSE rules SEC a proxy statement (including Rule 312.03 the “Proxy Statement”) and notice of special meeting of its stockholders (the “Special Meeting”), distribute the Proxy Statement to its stockholders within seven business days following its approval by the SEC (or expiration of the NYSE Listed SEC review period as the case may be) and shall duly call and hold the Special Meeting for the purpose of approving this Agreement and the transactions contemplated hereunder, including the Merger (collectively, the “Company Manual) do Proposals”), and for such other purposes as may be necessary or desirable to effectuate the transactions contemplated hereby. The foregoing notwithstanding, the Company shall provide Buyer with an opportunity to review and comment on each filing of, and correspondence to the SEC concerning, the Proxy Statement or any preliminary versions thereof. The Company will advise Buyer promptly of any request by the SEC for any amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Special Meeting any information should be discovered which should be set forth in an amendment or supplement to the Proxy Statement so that it would not require (whether because include any misstatement of a material fact or omit to state any material fact necessary to make the NYSE requirement has been satisfied statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by prior stockholder approvalslaw, disseminated to the stockholders of the Company. Except as otherwise contemplated or because permitted by Section 4.07 hereof, the board of an exception, a waiver or otherwise) directors of the Company will use its best efforts to obtain any necessary approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will Proposals and shall include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of Proxy Statement the recommendation of the Board shall not affect the obligations board of directors that stockholders of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement vote in advance favor of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersProposals.

Stockholder Approval. Unless (a) Parent shall call a meeting of its stockholders (the NYSE informs “Parent Meeting”) for the Company that purpose of obtaining the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior requisite stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file required in connection with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject issuance of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include Parent Common Stock in the proxy statement Merger (the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof “Parent Stockholder Approval ”) and shall use its reasonable best efforts to consult with the Investors and their counsel and, cause such meeting to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders occur as promptly soon as practicable, either by mail or by notice of internet access, and in any event within five Business Days after 35 days following the date on which the Proxy Statement is cleared by the SEC, which efforts shall include the actions set forth in Section 6.3(b); provided that Parent shall have the right to delay the Parent Meeting as necessary (i) if Parent has not on the date of the Parent Meeting received proxies representing a sufficient number of shares of Parent Common Stock to obtain the Parent Stockholder Approval, (ii) if Parent reasonably determines that it is legally required to provide new or additional information to its stockholders and to provide its stockholders with additional time to review such information prior to the Parent Meeting or (iii) by up to ten business days if Parent has provided to the Company is informed by the staff written notice of the SEC that they have no further comments with regard its determination to effect a Change of Recommendation ten or fewer business days prior to the proxy statementParent Meeting. The Company will cause Board of Directors of Parent shall use its reasonable best efforts to obtain from its stockholders the stockholders meeting Parent Stockholder Approval. Parent shall submit the proposal to which obtain the proxy statement relates Parent Stockholder Approval at the Parent Meeting even if its Board of Directors shall have withdrawn, modified or qualified its recommendation. The Board of Directors of Parent has adopted resolutions approving the Merger and at which the Companyissuance of Parent Common Stock in the Merger and directing that a proposal to issue the Parent Common Stock in connection with the Merger be submitted to the Parent’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersfor their consideration.

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary agrees to include in its proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, prepared and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior (the “Proxy Statement”) for its 2021 annual meeting of the stockholders (the “Stockholder Meeting”), to the date extent required by the listing rules of the Original AgreementNYSE, a proposal to approve (a) the Investors and their counsel shall have payment of dividends in kind through the opportunity issuance of additional shares of Series A Preferred Stock pursuant to review such preliminary proxy statement the Certificate of Designations (“PIK Dividends”), (b) the issuance of shares of Common Stock to the Investor Parties in advance connection with any future conversion of the Company filing Series A Preferred Stock, including any such preliminary proxy statement with Series A Preferred Stock issued as PIK Dividends and (c) the SECvoting of any Series A Preferred Stock and any shares of Common Stock issued upon conversion of the Series A Preferred Stock, that would, in each case, absent such approval violate NYSE Rule 312.03(c) (or its successor) (the “Stockholder Approval”). Subject to the directors’ fiduciary duties, (i) the Proxy Statement shall include the Board’s recommendation that the stockholders vote in favor of the Stockholder Approval and to provide comments thereon, which comments (ii) the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult solicit from the stockholders proxies in favor of the Stockholder Approval and to obtain the Stockholder Approval. The Investor and its Affiliates agree to furnish to the Company all information concerning the Investor and its Affiliates as the Company may reasonably request in connection with the Investors Proxy Statement and their counsel and, the Stockholder Meeting. The Company shall respond reasonably promptly to any comments received from the SEC with respect to the extent it is not unreasonable Proxy Statement. The Company shall provide to the Investor, as promptly as reasonably practicable after receipt thereof, any written comments from the SEC or any written request from the SEC or its staff for it amendments or supplements to do sothe Proxy Statement and shall provide the Investor with copies of all correspondence between the Company, on the one hand, and the SEC and its staff, on the other hand, relating to resolve and comply with all the Proxy Statement. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or, in each case, any amendment or supplement thereto) or responding to any comments of the SEC or its staff with respect thereto, the Company shall provide the Investor Parties with a reasonable opportunity to review and comment on such document or response. The Company shall, as promptly as reasonably practicable following the date on which the SEC confirms that it has no further comments on the Proxy Statement, (x) take all action required, including under the DGCL, the Company Charter Documents and the applicable rules of the SEC promptlyNYSE, to establish a record date for and to give notice of the Stockholder Meeting, (y) cause the proxy statement Proxy Statement to be filed in definitive form and distributed mailed to the Company’s stockholders as promptly as practicableof the record date established for the Stockholder Meeting and (z) take all action reasonably required, either by mail or by notice of internet accessincluding under the DGCL, and in any event within five Business Days after the Company is informed by Charter Documents and the staff applicable rules of the SEC that they have no further comments with regard NYSE, to duly call, convene and hold the proxy statement. The Company will cause Stockholder Meeting as soon as reasonably practicable following the stockholders meeting mailing of the Proxy Statement to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholders.

Stockholder Approval. Unless The Company shall seek, and use its best efforts to obtain, on or before the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 date which is 120 days after the date Escrow Funding Date, stockholder approval of the Original Agreementissuance of the Underlying Shares and the Warrant Shares, which approval shall meet the requirements of Rule 713 of the AMEX set forth in the AMEX Company will Guide (the "Stockholder Approval"). The Company shall call a meeting of stockholders (the "Stockholder Meeting") to be held within 120 days after the Escrow Funding Date, shall prepare and file with the SEC a as promptly as practical, but in no event later than 45 days after the Escrow Funding Date, preliminary proxy statement relating materials which set forth a proposal to a special stockholders meeting at which seek the Stockholder Approval, and the Board of Directors shall recommend approval thereof by the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual's stockholders. The Company will include in shall mail and distribute its proxy materials for the proxy statement the unanimous recommendation of Stockholder Meeting to its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC at least 45 days prior to the date of the Original AgreementStockholder Meeting, shall actively solicit proxies to vote for the Investors Stockholder Approval, and their counsel within 30 days after the Escrow Funding Date shall have retain a proxy solicitation firm of recognized national standing to assist in the solicitation. The Company shall provide the Purchaser an opportunity to review and comment on such proxy materials by providing (which may be by e-mail) copies of such proxy materials and any revised preliminary proxy statement in advance materials to the Purchaser a reasonable period of time prior to their filing with the SEC. The Company shall provide the Purchaser (which may be by e-mail) copies of all correspondence from or to the SEC or its staff concerning the proxy materials for the Stockholder Meeting promptly after the same is sent or received by the Company and summaries of any comments of the SEC staff which the Company filing receives orally promptly after receiving such preliminary oral comments. The Company shall furnish to the Purchaser and its legal counsel (which may be by e-mail) a copy of its definitive proxy statement materials for the Stockholder Meeting and any amendments or supplements thereto promptly after the same are first used, mailed to stockholders or filed with the SEC, and to provide comments thereon, which comments shall inform the Company shall give due and reasonable consideration. The Company will provide any comments received from Purchaser of the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof progress of solicitation of proxies for such meeting and shall use its reasonable best efforts to consult with inform the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments Purchaser of any adjournment of the staff Stockholder Meeting and shall report the result of the SEC promptly, and to cause vote of stockholders on such proposition at the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff conclusion of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersStockholder Meeting.

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special or annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon"Stockholder Meeting"), which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel be called as promptly as practicable upon receipt thereof after the date hereof, but in no event later than July 31, 2012 (the "Stockholder Meeting Deadline"), a proxy statement, in a form reasonably acceptable to the Buyers after review by Sxxxxxx Rxxx & Zxxxx LLP at the expense of the Company, soliciting each such stockholder's affirmative vote at the Stockholder Meeting for approval of resolutions (the "Resolutions") providing for the issuance of all of the Securities as described in the Transaction Documents in accordance with applicable law, the provisions of the Bylaws and the rules and regulations of the Principal Market (the "Stockholder Approval" and the date such approval is obtained, the "Stockholder Approval Date"), and the Company shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders' approval of the staff of the SEC promptly, such Resolutions and to cause the proxy statement Board of Directors of the Company to be filed in definitive form and distributed recommend to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to approve the proxy statementResolutions. The Company will cause shall be obligated to seek to obtain the stockholders meeting to which Stockholder Approval by the proxy statement relates and at which Stockholder Meeting Deadline. If, despite the Company’s stockholders will be asked to approve 's reasonable best efforts, the transactions that are Stockholder Approval is not obtained at the subject of Stockholder Meeting, the Investor Agreements Company shall cause an additional Stockholder Meeting to be held each calendar quarter thereafter until Stockholder Approval is obtained. For the avoidance of doubt, the number of shares outstanding as promptly of May 24, 2012 was 2,105,187, and as practicable and no such, the Company shall be required to obtain Stockholder Approval prior to the Buyers acquiring more than 40 days after an aggregate of 421,016 shares of Common Stock as a result of the Company distributes issuance of Interest Shares, Warrant Shares and/or Conversion Shares. Additionally, pursuant to the proxy statement Principal Market rules, Buyers acknowledge that the Warrant Shares, Interest Shares and/or Conversion Shares acquired prior to its stockholdersStockholder Approval may not be voted for the Resolutions at the Stockholder Meeting.

Stockholder Approval. Unless the NYSE informs The Company shall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the Company that (the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals“Stockholder Meeting”), or because of an exception, a waiver or otherwise) approval by which meeting shall be held no later than the Company’s stockholders annual meeting to be held in 2011 (which shall be held no later than July 31, 2011) (the “Stockholder Meeting Deadline”)), a proxy statement, substantially in a form which has been previously reviewed by each of the transactions that are Buyers and each of their counsel, soliciting each such stockholder’s affirmative vote at the subject Stockholder Meeting for approval of a resolution (the Investor Agreements, within 20 days after “Resolution”) to amend the date Certificate of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating Incorporation to a special stockholders meeting at which increase the Company’s stockholders will be asked authorized capital stock to approve at least 501,000,000 but not more than 1,001,000,000 shares of capital stock, at least 500,000,000 but not more than 1,000,000,000 of such shares being Common Stock and 1,000,000 of such shares being preferred stock (such affirmative approval being referred to herein as the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless“Stockholder Approval”), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of Resolution (which efforts shall include, without limitation, the SEC promptly, requirement to hire a reputable proxy solicitor) and to cause the proxy statement board of directors of the Company to recommend to the stockholders that they approve the Resolution. The Company shall be filed in definitive form obligated to hold the Stockholder Meeting by the Stockholder Meeting Deadline and distributed seek to obtain the Stockholder Approval at the Stockholder Meeting by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablebest efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will shall cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after every three (3) months thereafter until such Stockholder Approval is obtained. Until Stockholder Approval is obtained, (i) the Company distributes shall not, directly or indirectly, issue or sell, or, in accordance with Section 2 of the proxy statement Warrants, be deemed to its stockholdershave issued or sold, any shares of Common Stock (other than Excluded Securities and shares of Common Stock issuable under Convertible Securities held by any Buyer) for consideration per share (determined in accordance with Section 2 of the Warrants) less than the Exercise Price of the Series A Warrants at any time while any of the shares of Preferred Stock or Warrants are outstanding without the prior written consent of each Buyer, which consent may be granted or withheld in each Buyer’s sole discretion and (ii) in no event shall any Excluded Securities (other than the Conversion Shares and the Warrant Shares) be issued, or be deemed to be issued as contemplated hereby, for less than the fair market value of the Common Stock at the time such Excluded Securities are so issued or are so deemed to be issued.

Stockholder Approval. Unless (a) Subject to the NYSE informs provisions of Section 6.10, the Board of Directors of Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the resolved to recommend to Company’s stockholders of the transactions that are the subject of the Investor Agreementsthey adopt this Agreement and, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements unless this Agreement is previously terminated in accordance with Rule 312.03 its terms, will submit to its stockholders this Agreement and any other matters required to be approved by its stockholders in order to carry out the intentions of this Agreement. In furtherance of that obligation, Company shall duly take, in accordance with applicable law and the certificate of incorporation and bylaws of Company, all reasonable action necessary to set a record date for (with at least 20 business days’ prior notice to Purchaser of such record date) (the “Record Date”) and call, give notice of, convene and hold a meeting of its stockholders (the “Company Stockholders’ Meeting”), as promptly as reasonably practicable after Purchaser has obtained the SEC’s declaration of effectiveness of the NYSE Listed Form S-4, for the purpose of obtaining the Company ManualStockholder Approval. The Company will include agrees that unless this Agreement has been terminated in accordance with its terms, Company’s obligations pursuant to the proxy statement immediately preceding sentence of this Section 6.3 shall not be affected by the unanimous recommendation commencement, public proposal, public disclosure or communication to Company of any proposal with respect to a Third Party Acquisition or Change in Company Recommendation. Subject to the provisions of Section 6.10, Company shall, through its Board of Directors that Directors, recommend to its stockholders the Company’s stockholders vote to approve approval and adoption of this Agreement (the transactions that are the subject of the Investor Agreements“Company Recommendation”), unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with obtain from its stockholders the Investors and their counsel andCompany Stockholder Approval. Notwithstanding any Change in Company Recommendation, this Agreement shall be submitted to the extent it is not unreasonable stockholders of Company at the Company Stockholders’ Meeting for it the purpose of obtaining the Company Stockholder Approval and nothing contained herein shall be deemed to do so, to resolve and comply with all comments relieve Company of such obligation so long as Purchaser has obtained the SEC’s declaration of effectiveness of the staff Form S-4; provided, however, that if the Board of Directors of Company shall have effected a Change in Company Recommendation in accordance with Section 6.10, then the SEC promptly, and Board of Directors of Company shall submit this Agreement to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after without the Company is informed by Recommendation (although the staff resolutions adopting this Agreement as of the SEC that they have no further comments with regard date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will in the Proxy Statement or an appropriate amendment or supplement thereto if the Board of Directors determines that to fail to take such action would be asked to approve the transactions that are the subject of the Investor Agreements reasonably likely to be held as promptly as practicable and no more than 40 days after inconsistent with its fiduciary duties under applicable law; provided, that for the avoidance of doubt, Company distributes may not take any action under this sentence unless it has complied with the proxy statement provisions of Section 6.10. Subject to Section 6.10, in addition to the foregoing, neither Company nor the Board of Directors of Company shall recommend to its stockholdersstockholders or submit to the vote of its stockholders any Third Party Acquisition other than the Merger.

Stockholder Approval. Unless The Company shall, as soon as practicable following the NYSE informs Closing, but not more than thirty (30) days thereafter, file a preliminary proxy statement for a vote of its stockholders to approve (i) the issuance of all Conversion Shares upon conversion of the Shares in compliance with Nasdaq Listing Rule 5635(b) and/or (d), (ii) an amendment to the Company’s certificate of incorporation to increase its authorized number of shares of Common Stock to enable the issuance or reservation for issuance, as applicable, of all of the Conversion Shares (without regard to any limitations on conversion set forth in the Certificate of Designation) in compliance with the rules and regulations of Nasdaq (together, the “Transaction Proposals”), (iii) the Pool Increase (as defined below) and (iv) other customary annual stockholder meeting matters (the “Additional Proposals” and together with the Transaction Proposals, the “Proposals”). The Company shall, as soon as practicable following notification from the Staff that it has completed its review of the preliminary proxy statement or that it will not review the preliminary proxy statement, file and mail a definitive proxy statement for the vote of its stockholders to approve the Proposals. The Company covenants and agrees that its Board of Directors shall unanimously recommend that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval Proposals be approved by the Company’s stockholders at all meetings in which such Proposals are considered and promptly file, if applicable, the necessary amendments to the Company’s certificate of the transactions that are the subject of the Investor Agreements, within 20 days incorporation after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which Proposals are approved. If the Company’s stockholders will be asked to do not approve the transactions that Transaction Proposals at the first meeting in which they are voted on by the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extentstockholders, the Board determines, after consultation with counsel, Company covenants and agrees that in it will submit the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting Transaction Proposals for approval of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review at least annually until such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it approval is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersobtained.

Stockholder Approval. Unless The Company shall provide each stockholder entitled to vote at either (x) the NYSE informs the Company that the NYSE rules (including Rule 312.03 next annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject Company or (y) a special meeting of stockholders of the Investor AgreementsCompany (the "Stockholder Meeting"), within 20 days after which shall be promptly called and held not later than June 30, 2010 (or in the date event that such proxy statement is subject to a full review by the SEC, July 31, 2010) (the "Stockholder Meeting Deadline"), a proxy statement, substantially in a form which shall have been previously reviewed by Xxxxxxxxx Xxxxxxx LLP, at the expense of the Original Agreement, Company but in any event such expense not to exceed $15,000; soliciting each such stockholder's affirmative vote at the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which Stockholder Meeting for approval of resolutions ("Stockholder Resolutions") providing for the Company’s stockholders will be asked to approve the transactions that are the subject 's issuance of all of the Investor Agreements Securities as described in the Transaction Documents in accordance with Rule 312.03 applicable law and the rules and regulations of the NYSE Listed Company Manual. The Company will include in Principal Market (such affirmative approval being referred to herein as the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless"Stockholder Approval", and solely to the extentdate such Stockholder Approval is obtained, the Board determines“Stockholder Approval Date”), after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of and the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders' approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to be filed in definitive form and distributed recommend to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statementapprove such resolutions. The Company will cause shall be obligated to seek to obtain the stockholders meeting to which Stockholder Approval by the proxy statement relates and at which Stockholder Meeting Deadline. If, despite the Company’s stockholders will be asked 's reasonable best efforts the Stockholder Approval is not obtained on or prior to approve the transactions that are Stockholder Meeting Deadline, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days once in each of the three subsequent calendar quarters thereafter until such Stockholder Approval is obtained. If, despite the Company's reasonable best efforts the Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company distributes the proxy statement shall cause an additional Stockholder Meeting to its stockholdersbe held semi-annually thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless If at any time the NYSE informs Exchange Cap (as defined in the Warrants) would limit the aggregate number of shares of Common Stock which the Company that the NYSE rules (including Rule 312.03 may issue upon exercise of the NYSE Listed Warrants, at the written request of holders of a majority of the Warrant Shares outstanding at such time (as determined assuming full exercise of the Warrants prior to such date without taking into account any limitations on the exercise of the Warrants set forth in the Warrants) (the date of such request, the “Stockholder Meeting Request Date”), the Company Manualshall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the Company (the “Stockholder Meeting”), which shall be promptly called and held not later than ninety (90) do not require calendar days after the Stockholder Meeting Request Date (whether because the NYSE requirement “Stockholder Meeting Deadline”), a proxy statement, substantially in the form which has been satisfied previously reviewed by prior stockholder approvalsthe Buyers and Xxxxxxx Xxxx & Xxxxx LLP, or because soliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of an exception, a waiver or otherwise) approval by resolutions providing for the Company’s stockholders issuance of all of the transactions that are Securities as described in the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Transaction Documents in accordance with Rule 312.03 applicable law and the rules and regulations of the NYSE Listed Company Manual. The Company will include in Principal Market and such affirmative approval being referred to herein as the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless“Stockholder Approval”), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be filed in definitive form and distributed obligated to use its reasonable best efforts to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will shall cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable and every six (6) months thereafter until such Stockholder Approval is obtained or the Warrants are no more than 40 days after the Company distributes the proxy statement to its stockholderslonger outstanding.

Stockholder Approval. Unless As soon as reasonably practicable after the NYSE informs date hereof, the Company that shall give notice of a meeting of its stockholders, and the NYSE rules Company shall prepare a proxy statement and present to a stockholders' meeting (including Rule 312.03 the "Stockholders Meeting"), anticipated to be held as soon as reasonably practicable and in any event by August 31, 2001, resolutions approving the antidilution features of the NYSE Listed Series A Preferred Stock and the issuance of the Series B Preferred Stock on the Closing Date as well as the conversion features of such Series B Preferred Stock. The Company Manual) do agrees not require (whether because to hold any meeting of stockholders unless and until resolutions approving the NYSE requirement has been satisfied by prior stockholder approvalsissuance of the antidilution features of the Series A Preferred Stock and the Series B Preferred Stock on the Closing Date as well as conversion features of such Series B Preferred Stock are included in the matters to be voted upon at such meeting. Palladin, or because of an exceptionReservoir and Glenhill Capital LP, a waiver Delaware limited partnership (unless such Investor ceases to hold at least twenty five percent (25%) of the shares of Preferred Stock (or otherwiseunderlying Common Stock) approval held by such Investor upon the Company’s stockholders consummation of the transactions that are contemplated hereby, the subject of "Principal Investors") shall have the Investor Agreementsright and sufficient time to review the proxy materials prior to mailing to the Company's stockholders, within 20 days after and the date of Company shall promptly notify the Original AgreementInvestors upon the receipt of, and provide copies of, any comments and correspondence from the SEC with respect to such proxy materials. The Company shall respond promptly to any comments and correspondence from the SEC. In connection with the Stockholders Meeting, the Company will file with shall also cause the SEC a preliminary mailing of the proxy materials to its stockholders and shall solicit proxies in favor of such resolutions and shall use its best efforts to obtain stockholder approval thereof, including using its best efforts to continue to seek stockholder approval until such approval is obtained. The proxy statement relating to a special stockholders meeting the Stockholders Meeting shall comply with all applicable laws and shall not contain any material misstatements or omit material information at which the Company’s stockholders will be asked to approve the transactions that are the subject time of the Investor Agreements in accordance with Rule 312.03 mailing of such proxy statement to the stockholders of the NYSE Listed Company Manualand at the time of the Stockholders Meeting. The Board of Directors of the Company will shall recommend (and include such recommendation in the proxy statement statement) to its stockholders the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject approval of the Investor Agreements, unless, and solely to resolutions presented at the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersStockholders Meeting.

Stockholder Approval. Unless the NYSE informs (a) The Company Board shall not revoke or modify the Company that Board Resolutions. (b) The Company shall, with the NYSE rules assistance of Parent, prepare an information statement (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, together with any amendments thereof or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreementsupplements thereto, the “Information Statement”) to be used in connection with soliciting the requisite approvals and consents from the Stockholders to consummate the Merger, including the Company will file with Stockholder Approval, and the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the other transactions that are the subject of the Investor Agreements contemplated hereby in accordance with Rule 312.03 the Company Charter Documents and applicable Law, as well as to facilitate Parent’s proposed issuance of Parent Company Stock in the Merger in reliance upon an exemption from registration under Section 4(a)(2) of the NYSE Listed Company ManualSecurities Act. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject Information Statement shall include, among other things, a description of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise terms of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel Agreement and, to the extent it is not unreasonable for it to do somaterial, to resolve any other Transaction Agreement and comply with all comments the transactions contemplated hereby and thereby, information regarding the availability of appraisal rights under the DGCL, the recommendation of the staff Company Board to the Stockholders to vote in favor of the SEC promptlyapproval and adoption of this Agreement and the Merger and the other transactions contemplated hereby, and the Written Consent. The Company will send to cause each Stockholder the proxy statement to be filed in definitive form Information Statement for the purpose of considering, approving and distributed to adopting this Agreement and the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five transactions contemplated hereby not later than 5 Business Days after the Company is informed Agreement Date. The Parties shall cooperate with each other in connection with the preparation of the Information Statement, including by providing information reasonably necessary for the preparation of the Information Statement, and by accepting all reasonable additions, deletions or changes suggested in connection therewith. No amendment or supplement to the Information Statement will be made by the staff Company without the prior written consent of the SEC that they have no further comments with regard to the proxy statementParent. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholders.5.2.2

Stockholder Approval. Unless The Company acknowledges and agrees that it is currently seeking stockholder approval at its annual meeting (the NYSE informs “Annual Meeting”) to effect the Company that the NYSE rules (including Rule 312.03 Reverse Split. The Company’s Board of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement Directors has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by recommended to the Company’s stockholders that the stockholders vote in favor of the transactions that are Reverse Split proposal and has taken all commercially reasonable action to solicit the subject approval of the Investor Agreements, within 20 days after stockholders for the date of Reverse Split proposal. To the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors extent that the Company’s stockholders vote to do not approve the transactions that are Reverse Split proposal at the subject of the Investor AgreementsAnnual Meeting, unlesspromptly following January 17, and solely to the extent2020, the Board determines, after consultation with counsel, that in the exercise Company shall take all commercially reasonable action necessary to call a new meeting of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification stockholders (the “Stockholders Meeting”), which shall occur not later than June 7, 2020, for the purpose of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting seeking approval of the Company’s stockholders contemplated by this Agreementto effect the Reverse Split. If In connection therewith, the preliminary Company will as soon as reasonably practicable after January 17, 2020 file with the Commission proxy materials (including a proxy statement has not been filed with and form of proxy) for use at the SEC prior Stockholders Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall as soon as reasonably practicable mail such proxy materials to the date stockholders of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable considerationCompany. The Company will provide comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any comments received from proxy statement (as amended or supplemented, the SEC “Proxy Statement”) and any form of proxy to be sent to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult stockholders of the Company in connection with the Investors and their counsel and, Stockholders Meeting. If the Company should discover at any time prior to the extent it Stockholders Meeting, any event relating to the Company or the Subsidiary or any of their respective affiliates, officers or directors that is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement required to be filed set forth in definitive form and distributed a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly inform the Purchasers thereof. The Company’s Board of Directors shall recommend to the Company’s stockholders as promptly as practicablethat the stockholders vote in favor of the Reverse Split at the Stockholders Meeting and take all commercially reasonable action (including, either by mail or by notice without limitation, the hiring of internet access, and in any event within five Business Days after a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Reverse Split. If the Company does not obtain stockholder approval for the Reverse Split at the Stockholders Meeting, the Company shall call a meeting every four months thereafter to seek stockholder approval until the date that stockholder approval is informed by the staff obtained. No later than two (2) business days following stockholder approval of the SEC that they have no further comments Reverse Split proposal at the Annual Meeting, the Company shall file with regard the Secretary of State of Delaware a certificate of amendment to the proxy statementCompany’s Certificate of Incorporation to effect the Reverse Split, which certificate of amendment shall provide that it shall become immediately effective upon filing. The Company will cause shall issue a press release announcing the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject effectiveness of the Investor Agreements to be held as promptly as practicable and Reverse Split no more later than 40 days one (1) business day after the Company distributes the proxy statement to its stockholderssuch filing.

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special or annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject of “Stockholder Meeting”), which shall be promptly called and held not later than June 30, 2018 (the Investor Agreements“Stockholder Meeting Deadline”), within 20 days after the date of the Original Agreementa proxy statement, the Company will file with the SEC in a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely form reasonably acceptable to the extentBuyers and Kxxxxx Xxxx & Wxxxxx LLP, at the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting expense of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed , with the SEC prior Company obligated to reimburse the reasonable expenses of Kxxxxx Xxxx & Wxxxxx LLP incurred in connection therewith in an amount not to exceed $10,000, soliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for the approval of the issuance of all of the Securities in compliance with Nasdaq Rule 5635(d) (the “Stockholder Approval”, and the date of the Original AgreementStockholder Approval is obtained, the Investors “Stockholder Approval Date”), and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to be filed in definitive form and distributed recommend to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statementapprove such resolutions. The Company will cause shall be obligated to seek to obtain the stockholders meeting to which Stockholder Approval by the proxy statement relates and at which Stockholder Meeting Deadline. If, despite the Company’s stockholders will be asked 's reasonable best efforts the Stockholder Approval is not obtained on or prior to approve the transactions that are Stockholder Meeting Deadline, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days on or prior to August 30, 2018. If, despite the Company's reasonable best efforts the Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company distributes shall cause an additional Stockholder Meeting to be held quarterly thereafter until such Stockholder Approval is obtained. Each Buyer acknowledges that, as required by the proxy statement rules of the Principal Market, holders of Conversion Shares and Warrant Shares are not eligible to its stockholdersvote such shares with respect to the Stockholder Resolutions and such Buyer agrees to not vote any Conversion Shares or Warrant Shares held by such Buyer with respect to the Stockholder Resolutions.

Stockholder Approval. Unless (a) The Company shall, as promptly as practicable, in accordance with its certificate of incorporation and by-laws and the NYSE informs applicable requirements of the Delaware General Corporation Law, solicit the written consents of the Company that Stockholders for the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within Requisite Stockholder Approval. Within 20 days after the date of receipt of the Original AgreementRequisite Stockholder Approval, the Company will file shall send, pursuant to Sections 228 and 262(d) of the Delaware General Corporation Law, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the stockholders of the Company and that appraisal rights are available for their Company Shares pursuant to Section 262 of the Delaware General Corporation Law (which notice shall include a copy of such Section 262), and shall promptly inform the Buyer of the date on which such notice was sent. In connection with such notice, the Company shall provide to its stockholders the Disclosure Statement, which shall include (A) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Indemnifying Stockholders, the escrow arrangements and the authority of the Indemnification Representatives, and a statement that the adoption of this Agreement by the stockholders of the Company shall constitute approval of such terms) and (B) a statement that appraisal rights are available for the Company Shares pursuant to Section 262 of the Delaware General Corporation Law. The Buyer agrees to cooperate with the SEC a preliminary proxy statement relating to a special stockholders meeting at which Company in the Company’s stockholders will be asked to approve the transactions that are the subject preparation of the Investor Agreements in accordance with Rule 312.03 Disclosure Statement and shall give the Company any comments on the Disclosure Statement within 3 business days of the NYSE Listed Company Manualreceipt of such Disclosure Statement. The Company will include in agrees not to distribute the proxy statement Disclosure Statement until the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement Buyer has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the had a reasonable opportunity to review such preliminary proxy statement in advance of and comment on the Company filing such preliminary proxy statement with Disclosure Statement and the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed Disclosure Statement has been approved by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to Buyer (which the proxy statement relates and at which the Company’s stockholders will approval may not be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersunreasonably withheld, conditioned or delayed).

Stockholder Approval. Unless The Company shall prepare and file with the NYSE SEC (as defined in the Notes), as promptly as practicable after the date hereof, but in no event later than three (3) Business Days after the date of this Agreement, the Proxy Statement (as defined below). The Company shall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the Company (the “Stockholder Meeting”), which shall be called as promptly as practicable after the date hereof, but in no event later than the earlier of (i) 20 days after the SEC informs the Company that the NYSE rules (including Rule 312.03 there will be no review of the NYSE Listed Company ManualProxy Statement or that they have no further comments to the Proxy Statement and (ii) do not require August 31, 2011 (whether because such earlier date is referred to herein as the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception“Stockholder Meeting Deadline”), a waiver or otherwise) approval proxy statement (the “Proxy Statement”), in a form reasonably acceptable to the Claimants after review by each of their respective counsel at the expense of the Company, soliciting each such stockholder’s stockholders affirmative vote at the Stockholder Meeting solely for approval of resolutions (the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include “Resolutions”) providing for (a) an increase in the proxy statement the unanimous recommendation authorized shares of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations Common Stock of the Company to hold 750,000,000 and any actions required to cause such increase to occur, (b) the meeting election of directors, and (c) the approval of the Company’s stockholders contemplated by this Agreement. If auditors (such affirmative approval being referred to herein as the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement“Stockholder Approval”), the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such Resolutions and to cause the Board of Directors of the Company to recommend to the stockholders that they approve the Resolutions. In connection therewith, the Company shall, at its expense, hire a proxy statement solicitation firm acceptable to Iroquois Master Fund Ltd. to solicit the Stockholder Approval. The Company shall be filed in definitive form and distributed obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders reasonable best efforts, Stockholder Approval is not obtained at the Stockholder Meeting, the Company shall cause an additional Stockholder Meeting to be held each calendar quarter thereafter with respect to the Resolutions until the Stockholder Approval is obtained. The Company shall respond to all comments received from the SEC with respect to the Proxy Statement as promptly soon as practicable, either by mail or by notice of internet access, and practicable after the receipt thereof (but in any no event within later than five (5) Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersreceipt thereof).

Stockholder Approval. Unless If the NYSE informs Common Stock is listed on an Eligible Market other than the Principal Market (the “New Principal Market”) and the issuance of the New Conversion Shares, the Interest Shares and Warrant Shares as contemplated under the Transaction Documents would exceed that number of shares of Common Stock which the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by may issue without breaching the Company’s obligations under the rules or regulations of the New Principal Market, then the Company shall obtain the approval of its stockholders as required by the applicable rules of the New Principal Market for issuances of the New Conversion Shares, Warrant Shares and Interest Shares in excess of such amount. At such time, the Company shall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the transactions that are Company (the subject of the Investor Agreements“Stockholder Meeting”), within 20 which shall be promptly called and held not later than 75 days after the date earlier of (i) the New Principal Market indication of and (ii) the Company becoming aware of, any limitation imposed by the New Principal Market on the issuance of New Conversion Shares or Warrant Shares (the “Stockholder Meeting Deadline”), a proxy statement, substantially in the form which has been previously reviewed by the Buyers and Xxxxx Xxxxxxx LLP at the expense of the Original AgreementCompany, soliciting each such stockholder’s affirmative vote at the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which Stockholder Meeting for approval of resolutions providing for the Company’s stockholders will be asked to approve the transactions that are the subject issuance of all of the Investor Agreements Securities as described in the Transaction Documents in accordance with Rule 312.03 applicable law and the rules and regulations of the NYSE Listed Company Manual. The Company will include in New Principal Market and such affirmative approval being referred to herein as the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless“Stockholder Approval”), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be filed in definitive form and distributed obligated to use its reasonable best efforts to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will shall cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable and every six (6) months thereafter until such Stockholder Approval is obtained or the New Notes are no more than 40 days after the Company distributes the proxy statement to its stockholderslonger outstanding.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after As promptly as practicable following the date of the Original this Agreement, the Company will shall prepare and file a preliminary information statement containing the information specified in Schedule 14C under the Exchange Act in connection with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company ManualStockholder Approval. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy definitive information statement to be filed with the SEC as contemplated by Rule 14c-2 under the Exchange Act as promptly as practicable following the date on which the SEC has, orally or in writing, confirmed that it has no further comments on the preliminary information statement or does not intend to review the preliminary information statement, which confirmations shall be deemed to occur if the SEC has not affirmatively notified the Company prior to the tenth calendar day after making the initial filing of the preliminary information statement that the SEC will or will not be reviewing such preliminary information statement. If for any reason the Company cannot obtain Stockholder Approval via written consent by the holders of a majority of the voting power of the Company’s issued and outstanding capital stock entitled to vote thereon, the Company shall call a special meeting of stockholders (the “Stockholder Meeting”) at the earliest practical date following the determination that Stockholder Approval via written consent is not feasible, and the Company shall file a preliminary and definitive form proxy statement for the Stockholder Meeting as promptly as practicable thereafter and distributed shall hold the Stockholder Meeting for the purpose of obtaining Stockholder Approval, with the recommendation of the Company’s board of directors to the Company’s stockholders as promptly as practicable, either that such stockholders vote in favor of the matters contemplated by mail or by notice of internet accessthe Stockholder Approval, and in any event within five Business Days after the Company is informed by the staff shall solicit proxies from its stockholders in connection therewith, and all management-appointed proxyholders shall vote their proxies in favor of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderssuch matters.

Stockholder Approval. Unless Each of Company and Parent shall call a meeting of its stockholders to be held as soon as reasonably practicable for the NYSE informs purpose of obtaining the Company that requisite stockholder approval required in connection with the NYSE rules (including Rule 312.03 of Merger, on substantially the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original terms and conditions set forth in this Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with cause such meeting to occur as soon as reasonably practicable. The Board of Directors of Company shall use its reasonable best efforts to obtain from its stockholders the Investors stockholder vote approving the Merger, on substantially the terms and their counsel andconditions set forth in this Agreement, required to consummate the transactions contemplated by this Agreement, and shall recommend such approval except to the extent it is not unreasonable for it expressly permitted under Section 6.10(d) . Company shall submit this Agreement to do soits stockholders at the stockholder meeting even if its Board of Directors shall have withdrawn, to resolve modified or qualified its recommendation. The Board of Directors of Company has adopted resolutions approving the Merger, on substantially the terms and comply with all comments of the staff of the SEC promptlyconditions set forth in this Agreement, and directing that the Merger, on such terms and conditions, be submitted to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicablefor their consideration. The Board of Directors of Parent shall use its reasonable best efforts to obtain from its stockholders the stockholder vote approving the issuance of Parent Common Stock in the Merger, either on substantially the terms and conditions set forth in this Agreement, required to consummate the issuance of Parent Common Stock contemplated by mail or by notice of internet accessthis Agreement, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard shall recommend such approval except to the proxy statementextent making such recommendation would cause the Board of Directors of Parent to violate its fiduciary duties to Parent stockholders under applicable law. Parent shall submit the stock issuance proposal to its stockholders at the stockholder meeting even if its Board of Directors shall have withdrawn, modified or qualified its recommendation. The Company will cause Board of Directors of Parent has adopted resolutions approving the stockholders meeting Merger, on substantially the terms and conditions set forth in this Agreement, and directing that the issuance of Parent Common Stock in the Merger, on such terms and conditions, be submitted to which the proxy statement relates and at which the CompanyParent’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersfor their consideration.

Stockholder Approval. Unless (a) As expeditiously as possible (and in any event within one (1) Business Days) following the NYSE informs the Company that the NYSE rules (including Rule 312.03 filing of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreementpreliminary Proxy Statement, the Company will file with shall mail or otherwise distribute the SEC Disclosure Statement, in a preliminary proxy statement form reasonably acceptable to Parent, to the Company Stockholders, and shall promptly inform Parent of the date on which such Disclosure Statement (including the notices contained therein) was sent to the Company Stockholders. The Disclosure Statement shall include, among other things, (i) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the indemnification obligations of the Company Equityholders, the escrow arrangements and the authority of the Company Equityholder Representative, and a statement that the adoption of this Agreement by the stockholders of the Company shall constitute approval of such terms), (ii) a copy of this Agreement, (iii) the Company Financial Statements, (iv) a description of any interested persons or interested transactions with respect to hold the meeting Merger and this Agreement, (v) a statement that appraisal rights are available for the shares of Company Stock pursuant to Section 262 of the DGCL and a copy of such Section 262, (vi) such other information as may be required by Rules 502 or 506 of Regulation D promulgated under the Securities Act, and (vii) pursuant to Section 228 of the DGCL, a written notice to all stockholders of the Company that did not execute such Written Consent informing them that this Agreement and the Merger were adopted and approved by the stockholders of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors The Parent and their its counsel shall have the be given an adequate opportunity to review such preliminary proxy statement in advance of and comment on the Company filing such preliminary proxy statement with the SECDisclosure Statement, and to provide comments thereon, which comments the Company shall give due and reflect all reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of Parent or its counsel thereon. As expeditiously as possible following the staff execution of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet accessthis Agreement, and in any event within five by 5:00 p.m., New York City time, on the Business Days after Day immediately following the date of this Agreement, the Company is informed by shall use reasonable best efforts to secure Written Consents from Company Stockholders necessary to secure the staff Company Stockholder Approval. As expeditiously as possible following the receipt of the SEC that they have no further comments with regard Company Stockholder Approval, the Company shall deliver to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject Parent a certificate executed on behalf of the Investor Agreements to be held as promptly as practicable Company by its Secretary and no more than 40 days after certifying that the Company distributes the proxy statement to its stockholdersStockholder Approval has been obtained.

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject “Stockholder Meeting”), which shall be promptly called and held not later than May 31, 2023 (the “Stockholder Meeting Deadline”), a proxy statement, in each case, in a form reasonably acceptable to the Holder and Xxxxxx Xxxx & Xxxxxx LLP, at the expense of the Investor AgreementsCompany, within 20 days after the date of the Original Agreement, with the Company will file with obligated to reimburse the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject expenses of the Investor Agreements Xxxxxx Xxxx & Xxxxxx LLP incurred in accordance with Rule 312.03 of the NYSE Listed Company Manualconnection therewith in an amount not exceed $5,000. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreementsstatement, unlessif any, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting solicit each of the Company’s stockholders contemplated by this Agreement. If stockholder’s affirmative vote at the preliminary proxy statement has not been filed with Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for (x) the SEC prior to the date increase of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance authorized shares of Common Stock of the Company filing such preliminary proxy statement from 100,000,000 to 1,000,000,000 (the “Increase in Authorized”) and/or a reverse stock split of the issued and outstanding shares of Common Stock of the Company resulting in a similar impact on the Company’s authorized but unissued shares of Common Stock and (y) the approval of any matters requiring stockholder approval pursuant to the listing requirements of the Principal Market including, without limitation the issuance of more than 20% of the outstanding shares of Common Stock, in connection with the SECTransaction (such affirmative approval being referred to herein as the “Stockholder Approval”, and to provide comments thereonthe date such Stockholder Approval is obtained, which comments the “Stockholder Approval Date”), and the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be filed in definitive form and distributed obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard shall cause an additional Stockholder Meeting to the proxy statementbe held on or prior to July 31, 2023. The Company will cause the stockholders meeting to which the proxy statement relates and at which If, despite the Company’s stockholders will be asked to approve reasonable best efforts the transactions that are Stockholder Approval is not obtained after such subsequent stockholder meetings, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderssemi-annually thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless the NYSE informs the (a) The Company that the NYSE rules (including Rule 312.03 shall call and convene a special meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholders or solicit a written stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days consent as promptly as practicable after the date of this Agreement. The Company shall use its Reasonable Best Efforts to obtain, as promptly as practicable, the Original AgreementRequisite Stockholder Approval, either at such special meeting of stockholders or pursuant to such written stockholder consent, all in accordance with the applicable requirements of the Delaware General Corporation Law. In connection with such special meeting of stockholders or written stockholder consent, the Company will file with shall provide to its stockholders a written proxy or information statement (the SEC "Disclosure Statement") which includes (A) a preliminary proxy statement summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Company Stockholders, the escrow arrangements and the authority of the Indemnification Representatives, and a special statement that the adoption of this Agreement by the stockholders meeting at which of the Company shall constitute approval of such terms), (B) all of the information required by Rule 502(b)(2) of Regulation D under the Securities Act with respect to the Company’s stockholders will be asked , (C) a statement that appraisal rights are available for the Company Shares pursuant to approve the transactions that are the subject Section 262 of the Investor Agreements in accordance with Rule 312.03 Delaware General Corporation Law and a copy of the NYSE Listed Company Manual. The Company will include in the proxy statement such Section 262 and (D) the unanimous recommendation of its the Company's Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting vote in favor of the Company’s adoption of this Agreement and the approval of the Merger. The terms of this Agreement shall be submitted to the stockholders contemplated whether or not the Board of Directors of the Company determines at any time subsequent to declaring its advisability that the Agreement is no longer advisable and recommends that the stockholders reject it. The Buyer agrees to cooperate with the Company in the preparation of the Disclosure Statement. The Company agrees not to distribute the Disclosure Statement until the Buyer has had a reasonable opportunity to review and comment on the Disclosure Statement and the Disclosure Statement has been approved by this Agreementthe Buyer (which approval may not be unreasonably withheld or delayed). If the preliminary proxy statement has not been filed with Requisite Stockholder Approval is obtained by means of a written consent, the SEC prior Company shall send, pursuant to the date Section 228 and 262(d) of the Original AgreementDelaware General Corporation Law, the Investors and their counsel shall have the opportunity a written notice to review such preliminary proxy statement in advance all stockholders of the Company filing that did not execute such preliminary proxy statement with written consent informing them that this Agreement and the SECMerger were adopted and approved by the stockholders of the Company and that appraisal rights are available for their Company Shares pursuant to Section 262 of the Delaware General Corporation Law (which notice shall include a copy of such Section 262), and to provide comments thereon, which comments shall promptly inform the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments Buyer of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by date on which such notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderswas sent.

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special or annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject “Stockholder Meeting”), which shall be called and held not later than one year following the Closing Date (the “Stockholder Meeting Deadline”), a proxy statement, substantially in the form which has been previously reviewed by the Buyers and Xxxxxxx Xxxx & Xxxxx LLP at the expense of the Investor AgreementsCompany, within 20 days after soliciting each such stockholder’s affirmative vote at the date Stockholder Meeting for approval of resolutions (the “Resolutions”) providing for the issuance of all of the Original Agreement, Securities as described in the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Transaction Documents in accordance with Rule 312.03 applicable law and the rules and regulations of the NYSE Listed Company Manual. The Company will include Principal Market or if not required by the Principal Market, in accordance with NASDAQ Marketplace Rule 4350(i) (such affirmative approval being referred to herein as the proxy statement “Stockholder Approval” and the unanimous recommendation of its Board of Directors that date such approval is obtained, the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless“Stockholder Approval Date”), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, Resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve the Resolutions. The Company shall be filed in definitive form and distributed obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts, either by mail or by notice of internet accessthe Stockholder Approval is not obtained at the Stockholder Meeting, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will shall cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after each twelve month period thereafter until such Stockholder Approval is obtained, provided that if the Board of Directors of the Company distributes does not recommend to the proxy statement stockholders that they approve the Resolutions at any such Stockholder Meeting and the Stockholder Approval is not obtained, or the Notes are no longer outstanding, the Company shall cause an additional Stockholder Meeting to its stockholdersbe held each calendar quarter thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless (a) As promptly as practicable, but in no event more than two (2) Business Days, after the NYSE informs receipt of a California Permit or after the Registration Statement is declared effective by the SEC pursuant to the Securities Act, the Company that shall submit this Agreement and the NYSE rules (including Rule 312.03 transactions contemplated hereby to the Stockholders for approval and adoption as provided by the DGCL and the Company Certificate of Incorporation and By-laws of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvalsCompany. Such submission, and any proxy or because consent in connection therewith, shall specify that adoption of an exception, a waiver or otherwise) this Agreement shall constitute approval by the Company’s stockholders Stockholders of: (A) the escrow and indemnification obligations of the transactions that are Stockholders set forth in Article X hereof and the subject deposit of the Investor Escrow Amount with the Escrow Agent and (B) the appointment of Xxxxxx Xxxx as the Stockholder Representative, with the rights and responsibilities set forth in this Agreement. Any materials to be submitted to the Stockholders in connection with the solicitation of their approval of the Merger and this Agreement (the “Soliciting Materials”) shall be subject to review and approval by Parent and shall include information regarding the Company, the terms of the Merger, this Agreement and the Related Agreements, within 20 days after and include the date recommendation of the Original board of directors of the Company in favor of the Merger, this Agreement, the Company will file with Escrow Agreement and the SEC other transactions contemplated by this Agreement, and a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote board of directors has determined that the terms of the Merger and this Agreement are fair to and in the best interests of the Company and the Stockholders. The Company shall use its commercially reasonable efforts to obtain the approval or consent of its Stockholders sufficient to approve the transactions that are the subject of the Investor Agreements, unless, Merger and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, Agreement and to provide comments thereon, which comments enable the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC Closing to the Investors and their counsel occur as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with following the Investors and their counsel date hereof and, in any event, within thirty (30) days following the receipt of the California Permit or the date on which the Registration Statement is declared effective by the SEC pursuant to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersSecurities Act.

Stockholder Approval. Unless The Company shall prepare and file with the NYSE informs SEC, as promptly as practicable after the Company that the NYSE rules date hereof but in no event later than twenty (including Rule 312.03 of the NYSE Listed Company Manual20) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date hereof, an information statement (the "INFORMATION STATEMENT"), substantially in the form that has been previously reviewed and reasonably approved by the Buyers and a counsel of their choice, informing the stockholders of the Original Agreement, Company of the receipt of the consents of the requisite stockholders (the "STOCKHOLDER CONSENT") approving resolutions increasing the authorized number of shares of common stock from 15,000,000 shares to 60,000,000 shares (the "SHARE INCREASE"). The Company will shall prepare and file with the SEC a preliminary proxy statement relating with respect to a special stockholders or annual meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 stockholders of the NYSE Listed Company Manual. The (the "STOCKHOLDER MEETING"), which shall be promptly called and held not later than June 30, 2006 (the "STOCKHOLDER MEETING DEADLINE") soliciting each such stockholder's affirmative vote for approval of, to the extent not previously adopted, the amended forms of Certificate of Incorporation and By-Laws of the Company will include in substantially the proxy statement forms attached as Exhibit K and Exhibit L hereto, respectively (such affirmative approval being referred to herein as the unanimous recommendation "STOCKHOLDER APPROVAL"), and the Company shall use its best efforts to solicit its stockholders' approval of its such resolutions and to cause the Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold recommend to the meeting of stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders contemplated by this Agreement. If 's best efforts the preliminary proxy statement has Stockholder Approval is not been filed with the SEC obtained on or prior to the date of the Original AgreementStockholder Meeting Deadline, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderseach calendar quarter thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless the NYSE informs The Company shall provide each stockholder entitled to vote at a special meeting of stockholders of the Company that (the NYSE rules “Stockholder Meeting”), which shall be promptly called and held not later than October 5, 2023 (including Rule 312.03 the “Stockholder Meeting Deadline”), a proxy statement, in each case, in a form reasonably acceptable to the Holder and Xxxxxx Xxxx & Xxxxxx LLP, at the expense of the NYSE Listed Company, with the Company Manual) do obligated to reimburse the expenses of Xxxxxx Xxxx & Xxxxxx LLP incurred in connection therewith in an amount not require (whether because the NYSE requirement has been satisfied by prior stockholder approvalsexceed $5,000. The proxy statement, or because if any, shall solicit each of an exception, a waiver or otherwise) approval by the Company’s stockholders stockholder’s affirmative vote at the Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for the approval of (x) the increase of the transactions that are the subject authorized shares of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations Common Stock of the Company from 175 million to hold 250 million, (y) any matters requiring stockholder approval pursuant to the meeting listing requirements of the Principal Market including, without limitation the issuance of more than 20% of the outstanding shares of Common Stock, in connection with the Transaction and (z) a reverse stock split of the Common Stock in a ratio of not more than one share of new Common Stock for every five shares of Common Stock, then outstanding, but only to the extent that the approval of the Company’s stockholders contemplated by this Agreement. If is required to approve such reverse stock split (such affirmative approval being referred to herein as the preliminary proxy statement has not been filed with the SEC prior to “Stockholder Approval”, and the date of the Original Agreementsuch Stockholder Approval is obtained, the Investors “Stockholder Approval Date”), and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be filed in definitive form and distributed obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard shall cause an additional Stockholder Meeting to the proxy statementbe held on or prior to November 2, 2023. The Company will cause the stockholders meeting to which the proxy statement relates and at which If, despite the Company’s stockholders will be asked to approve reasonable best efforts the transactions that are Stockholder Approval is not obtained after such subsequent stockholder meetings, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderssemi-annually thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless The Company shall use its Reasonable Best Efforts to obtain, immediately following the NYSE informs execution and delivery of this Agreement, the Requisite Stockholder Approval, all in accordance with the applicable requirements of the DGCL. In connection with such action, the Company shall provide to its stockholders (promptly after the date hereof) the Disclosure Statement, which shall include (A) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Company Holders, the escrow arrangements and the authority of the Holder Representative, and a statement that the NYSE rules (including Rule 312.03 adoption of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval this Agreement by the Company’s stockholders of the transactions Company shall constitute approval of such terms), and (B) a statement that appraisal or dissenters’ rights are available for the subject Company Shares pursuant to (x) Section 262 of the Investor Agreements, within 20 days after the date DGCL and a correct and complete copy of such Section 262 and (y) Section 1300 et. al. of the Original Agreement, CGCL and a correct and complete copy of such Section 1300 et. al. The Buyer agrees to reasonably cooperate with the Company will file with in the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject preparation of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company ManualDisclosure Statement. The Company will agrees not to distribute the Disclosure Statement until Buyer has had a reasonable opportunity to review and comment on the Disclosure Statement. The Company, acting through its Board of Directors, shall include in the proxy statement Disclosure Statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor AgreementsCompany vote in favor of the adoption of this Agreement and the approval of the Merger; provided however, unlessthat, and solely subject to the extentSection 4.7, the Board determinesof Directors of the Company may evaluate whether to make and may make a change in its recommendation prior to delivery of the Requisite Stockholder Approval, after consultation as applicable, and may make any statement required by applicable Law, if the Board of Directors of the Company determines that a change in its recommendation is necessary in order for such Board to comply with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of under the recommendation of DGCL and the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersCGCL.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts Reasonable Best Efforts to consult with the Investors and their counsel andobtain, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, the Requisite Stockholder Approval, either by mail at a special meeting of stockholders or by notice pursuant to a written stockholder consent, all in accordance with the applicable requirements of internet accessthe Delaware General Corporation Law. In connection with such special meeting of stockholders or written stockholder consent, and in any event within five Business Days after the Company is informed by shall provide to its stockholders the staff Disclosure Statement, which shall include (A) a summary of the SEC Merger and this Agreement and (B) a statement that they have no further comments appraisal rights are available for the Common Shares pursuant to Section 262 of the Delaware General Corporation Law and a copy of such Section 262. The Buyer agrees to cooperate with regard to the proxy statementCompany in the preparation of the Disclosure Statement. The Company will cause agrees not to distribute the Disclosure Statement until the Buyer has had a reasonable opportunity to review and comment on the Disclosure Statement and the Disclosure Statement has been approved by the Buyer (which approval may not be unreasonably withheld, conditioned or delayed). If the Requisite Stockholder Approval is obtained by means of a written consent, the Company shall send, pursuant to Sections 228 and 262(d) of the Delaware General Corporation Law, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Company and that appraisal rights are available for their Common Shares pursuant to be held as Section 262 of the Delaware General Corporation Law (which notice shall include a copy of such Section 262), and shall promptly as practicable and no more than 40 days after inform the Company distributes Buyer of the proxy statement to its stockholdersdate on which such notice was sent.

Stockholder Approval. Unless (a) As promptly as practicable after the NYSE informs receipt of a California Permit or after the Registration Statement is declared effective by the SEC pursuant to the Securities Act, the Company that shall submit this Agreement and the NYSE rules (including Rule 312.03 transactions contemplated hereby to the Stockholders for approval and adoption as provided by the DGCL and the Certificate of Incorporation and By-laws of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvalsCompany. Such submission, and any proxy or because consent in connection therewith, shall specify that adoption of an exception, a waiver or otherwise) this Agreement shall constitute approval by the Company’s stockholders Stockholders of: (A) the escrow and indemnification obligations of the transactions that are Stockholders set forth in Article IX hereof and the subject deposit of the Investor AgreementsEscrow Amount with the Escrow Agent and (B) the appointment of Edward G. Sim as Stockholder Representative, within 20 days after with the date rights and respoxxxxxxxxxes set forth in this Agreement. Any materials to be submitted to the Stockholders in connection with the solicitation of their approval of the Original Agreement, Merger and this Agreement (the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will "SOLICITING MATERIALS") shall include in the proxy statement the unanimous recommendation of its the Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting in favor of the Company’s stockholders Merger, this Agreement, the Escrow Agreement and the other transactions contemplated by this Agreement. If , and a statement that the preliminary proxy statement Company's Board of Directors has not been filed with unanimously determined that the SEC prior to the date terms of the Original Agreement, Merger and this Agreement are fair to and in the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance best interests of the Company filing such preliminary proxy statement with and the SECStockholders, and to provide comments thereon, which comments the Company shall give due and reasonable considerationexcept as expressly permitted otherwise in Section 6.15(c). The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with obtain the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments consent of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked its Stockholders sufficient to approve the transactions that are Merger and this Agreement and to enable the subject of the Investor Agreements Closing to be held occur as promptly as practicable and no more than 40 following the date hereof and, in any event, within thirty (30) days after following the Company distributes receipt of the proxy statement California Permit or the date on which the Registration Statement is declared effective by the SEC pursuant to its stockholdersthe Securities Act.

Stockholder Approval. Unless (a) The Company shall use its Reasonable Best Efforts to obtain, immediately following the NYSE informs execution and delivery of this Agreement, the Company that Requisite Stockholder Approval and the NYSE rules (including Rule 312.03 stockholder approval set forth in Section 5.2(p), pursuant to a written stockholder consent, all in accordance with the applicable requirements of the NYSE Listed Company Manual) do not require (whether because Delaware General Corporation Law. In connection with soliciting the NYSE requirement has been satisfied by prior written stockholder approvalsconsent, or because promptly following the execution and delivery of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original this Agreement, the Company will file shall provide to its stockholders the Disclosure Statement, which shall include (A) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Company Holders, the escrow arrangements and the authority of the Holder Agent, and a statement that the adoption of this Agreement by the stockholders of the Company shall constitute approval of such terms), (B) a statement that appraisal or dissenters’ rights are available for the Company Shares pursuant to Section 262 of the Delaware General Corporation Law and a correct and complete copy of such Section 262, and (C) a written notice pursuant to Section 228 and Section 262(d) of the Delaware General Corporation Law to all stockholders of the Company that did not execute such written consent informing such stockholders that this Agreement and the Merger were adopted and approved by the stockholders of the Company. Buyer agrees to reasonably cooperate with the SEC a preliminary proxy statement relating to a special stockholders meeting at which Company in the Company’s stockholders will be asked to approve the transactions that are the subject preparation of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company ManualDisclosure Statement. The Company will agrees not to distribute the Disclosure Statement until Buyer has had a reasonable opportunity to review and comment on the Disclosure Statement and the Disclosure Statement has been approved by Buyer (which approval may not be unreasonably withheld, conditioned or delayed). The Company, acting through its Board of Directors, shall include in the proxy statement Disclosure Statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting vote in favor of the Company’s stockholders contemplated by adoption of this Agreement. If Agreement and the preliminary proxy statement has not been filed with the SEC prior to the date approval of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersMerger.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days As soon as practicable after the date of hereof, CBL and JRI agree to cooperate to prepare (and JRI agrees to provide to CBL the Original Agreement, information regarding the Company Properties and Weston Management required to be included therein) and CBL agrees that it will file with the SEC a preliminary proxy statement relating with respect to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders of the REIT in connection with the issuance of the SCUs as contemplated herein (the "Proxy Statement"), which shall be mutually agreed to by CBL and JRI, such approval not to be unreasonably withheld by either party. The parties agree to cooperate and promptly prepare and file with the SEC as soon as practicable any other filings required under the Exchange Act (the "Additional Filings") to facilitate obtaining the consents sought in the Proxy Statement. Each of JRI, on the one hand, and CBL, on the other hand, agrees that the information provided by it for inclusion in the Proxy Statement, the Additional Filings, and each amendment or supplement thereto, at the time of filing and mailing thereof and at the time of the REIT Stockholders Meeting in respect of the matters addressed in the Proxy Statement, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. CBL will use commercially reasonable efforts, and JRI will cooperate with CBL in that regard, to (i) file a preliminary Proxy Statement with the SEC and (ii) cause the Proxy Statement to be mailed to the REIT's stockholders, in each case, as promptly as practicable (including clearing the Proxy Statement with the SEC); provided, however, that CBL will not be required to mail the Proxy Statement to the REIT's stockholders until the later of (x) expiry of the Initial Period and (y) JRI has advised CBL in writing that JRI has received consent from TIAA to the transactions contemplated by this Agreement. If CBL will notify JRI promptly of the preliminary proxy statement receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Proxy Statement or the Additional Filings or for additional information and will supply JRI with copies of all correspondence between such party or any of its representatives and the SEC, with respect to the Proxy Statement or the Additional Filings. CBL and JRI agree to cooperate to cause the Proxy Statement and any Additional Filings to comply in all material respects with all applicable requirements of law. Whenever any event has not been filed occurred that is required to be set forth in an amendment or supplement to the Proxy Statement or the Additional Filings, CBL on the one hand, and JRI on the other hand, will promptly inform the other of such occurrence and thereafter the parties will cooperate in filing with the SEC prior and/or mailing to the date stockholders of the Original Agreement, the Investors and their counsel shall have the opportunity to review REIT such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC amendment or supplement to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with Proxy Statement and/or the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersAdditional Filing.

Stockholder Approval. Unless the NYSE informs The Company shall provide each stockholder entitled to vote at a special meeting of stockholders of the Company that (the NYSE rules (including Rule 312.03 “Stockholder Meeting”), which shall be promptly called and held not later than 180 calendar days from the date hereof, a proxy statement meeting the requirements of Section 14 of the NYSE Listed Company ManualExchange Act and the related rules and regulations thereunder promulgated by the Commission (“Proxy Statement”) do not require (whether because soliciting each such stockholder’s affirmative vote at the NYSE requirement has been satisfied by prior stockholder approvals, or because Stockholder Meeting for approval of an exception, a waiver or otherwise) approval by resolutions approving the Company’s stockholders issuance of the transactions that are Securities (the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements “Stockholder Approval”) in accordance with Rule 312.03 law and the rules and regulations of the NYSE Listed Company Manual. The Company will include in Nasdaq Global Market (or any other applicable Trading Market) and the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unlessDelaware General Corporation Law, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Proxy Statement shall be filed in definitive a form reasonably acceptable to the Holders and distributed accordingly, the Company shall provide the Legal Counsel (as defined in the Registration Rights Agreement) with reasonable opportunity to review and comment on the Proxy Statement. The Company shall keep the Purchasers apprised of the status of matters relating to the Proxy Statement and the Stockholder Meeting, including promptly furnishing the Purchasers and their counsel with copies of notices or other communications related to the Proxy Statement, the Stockholder Meeting or the transactions contemplated hereby received by the Company from the Commission or the Nasdaq Global Market. In the event that the Stockholder Approval is not obtained at the Stockholder Meeting, then the Company shall use its reasonable best efforts to solicit the Stockholder Approval and to cause the Board of Directors of the Company to recommend to the stockholders that they approve such resolutions at the Company’s annual meeting of stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable in 2009, and no more than 40 days after at each successive annual meeting of stockholders thereafter until the Company distributes the proxy statement to its stockholdersStockholder Approval has been obtained.

Stockholder Approval. Unless Promptly following the NYSE informs date hereof , the Company that and its Board of Directors shall (i) prepare proxy materials and solicit proxies requesting Stockholder Approval (as defined below), (ii) call an annual or special meeting (the NYSE rules (including Rule 312.03 “Special Meeting”) of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders (which shall be held no later than August 1, 2005, subject to any delay caused solely by the SEC’s review of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject thereto or clearance of the Investor Agreements in accordance with Rule 312.03 materials under applicable SEC rules and regulations) for the purpose of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors obtaining Stockholder Approval, (iii) recommend that the Company’s stockholders vote in favor of such approval, and (iv) otherwise use commercially reasonable best efforts to approve obtain Stockholder Approval. If Stockholder Approval is not obtained at the transactions Special Meeting, the Company and its Board of Directors shall continue to use commercially reasonable best efforts to obtain Stockholder Approval until Stockholder Approval is obtained. A request for Stockholder Approval, unless the Board of Directors receives an opinion of counsel advising that are the subject such recommendation would constitute a breach of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its directors’ fiduciary duties it must withdraw or modify imposed by applicable law, shall include a recommendation that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated vote in favor of such approval. All expenses related to the solicitation of proxies with respect to, or otherwise incurred in connection with, obtaining Stockholder Approval shall be borne by the Company. “Stockholder Approval” means the affirmative vote by the holders of the requisite number of votes cast at a meeting of stockholders to duly and validly approve (i) the issuance of the Exchange Warrants upon exchange of the Note in accordance with the terms and conditions thereof and of this Agreement. If , (ii) the preliminary proxy statement has not been filed issuance of the Series B Preferred Stock and the C-3 Warrant pursuant to this Agreement, in the event that Nasdaq requires stockholder approval of these transactions in connection with the SEC prior Supplemental Listing Application (as described in Section 4(u) below), and (iii) any other transaction contemplated hereby which respect to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement which Nasdaq requires specific stockholder approval in advance of the Company filing such preliminary proxy statement connection with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel Supplemental Listing Application (as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed described in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersSection 4(u) below).

Stockholder Approval. Unless At a time mutually agreeable to Owners and Company after the NYSE informs execution of this Agreement, but in any event within sixty days of the date hereof, the Company shall submit this Agreement, and the transactions contemplated hereby to its stockholders at a special meeting for approval and adoption as provided by the GCC and its Articles of Incorporation and Bylaws. The Board of Directors of the Company shall approve this Agreement and declare its advisability, and recommend that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject Company vote in favor of the Investor Agreements, within 20 days after the date of the Original and adopt and approve this Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its commercially reasonable best efforts to consult with solicit and obtain the Investors approval of its stockholders to approve and their counsel and, to adopt the extent it is not unreasonable for it to do so, to resolve Agreement and comply with all comments of approve the staff of the SEC promptly, Merger and to cause enable the proxy statement Closing to be filed in definitive form and distributed to the Company’s occur at a special meeting of stockholders as promptly as practicable, either by mail or by notice of internet access, . In connection with such stockholder approval and in any event within five Business Days as soon as practicable after the execution of this Agreement, the Company is informed shall prepare, with the cooperation of Owners, an information statement (the “Information Statement”) for purposes of soliciting such approval of the stockholders, which shall include a statement to the effect that the Board of Directors of the Company has recommended that the stockholders of the Company vote in favor of and adopt and approve this Agreement. The Information Statement shall specify that adoption of this Agreement or submission of the letter of transmittal shall constitute approval by the staff stockholders of the SEC Company of: (i) the escrow and all other provisions of Article IX hereof and the deposit of that they have no further comments with regard portion of the Merger Consideration equal to the proxy statementEscrow Amount into the Escrow Fund and (ii) in favor of the appointment of N.G. Houston III as Stockholder Representative, under and as defined in this Agreement. The Company In addition, the letter of transmittal shall contain representations and warranties of the stockholders as to ownership and authority. Each Signing Stockholder hereby covenants and agrees that, during the period commencing on the date hereof and continuing until the first to occur of (A) the Effective Time and (B) termination of this Agreement in accordance with its terms, at any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of Company, however called, or in connection with any written consent of the stockholders of Company, such Signing Stockholder will appear at the meeting or otherwise cause the stockholders meeting shares of Company Common Stock held by such Signing Stockholder to which the proxy statement relates be counted as present thereat for purposes of establishing a quorum and at which the Company’s stockholders will vote or consent (or cause to be asked to approve the transactions that are the subject voted or consented) such shares in favor of the Investor Agreements to be held as promptly as practicable approval and no more than 40 days after adoption of this Agreement and the Company distributes approval of the proxy statement to its stockholdersMerger and the other actions contemplated by this Agreement and any actions required in furtherance thereof.

Stockholder Approval. Unless (a) As promptly as reasonably practicable after the NYSE informs execution of this Agreement but in any event not more than fifteen (15) Business Days after the date hereof, the Company shall prepare the Company Proxy Statement in preliminary form and file it with the SEC. The Board of Directors has determined that the NYSE rules (including Rule 312.03 transactions contemplated by this Agreement and the Ancillary Documents are fair to and in the best interests of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement and its stockholders, has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by resolved to recommend to the Company’s stockholders that the holders of the transactions that are Common Stock approve the subject Charter Amendment, the issuance of the Purchased Preferred Shares to Investors, the New LTIP and the other transactions contemplated hereunder and shall include such recommendation in the Company Proxy Statement. Each Investor Agreements, within 20 days after shall provide to the date Company all information concerning such Investor and its Affiliates as may be reasonably requested by the Company in connection with the Company Proxy Statement and shall otherwise cooperate with the Company in the preparation of the Original Agreement, Company Proxy Statement and the resolution of any comments thereto received from the SEC. Each of the Company will file with and Investors shall promptly correct any information provided by it for use in the SEC a preliminary proxy statement relating Company Proxy Statement if and to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements extent such information shall have become false or misleading in accordance with Rule 312.03 of the NYSE Listed Company Manualany material respect. The Company will include in shall notify Investors promptly upon the proxy statement receipt of any comments from the unanimous recommendation SEC and of any request by the SEC for amendments or supplements to the Company Proxy Statement and shall supply Investors with copies of all written correspondence between the Company or any of its Board of Directors that representatives, on the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unlessone hand, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and on the other hand, with respect to provide comments thereon, which comments the Company shall give due and reasonable considerationProxy Statement. The Company will provide shall use its commercially reasonable efforts to respond promptly to any comments received from the SEC concerning the Company Proxy Statement and to resolve such comments with the Investors and their counsel as promptly as practicable upon receipt thereof SEC, and shall use its commercially reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement Company Proxy Statement to be filed in definitive form and distributed disseminated to the Company’s its stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff resolution of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersany such comments.

Stockholder Approval. Unless (i) The Company shall prepare and file with the NYSE informs SEC, as promptly as practicable after the date hereof, but in no event later than twenty (20) calendar days after the Closing Date, the Proxy Statement (as defined below). The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special or annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject of the Investor Agreements“Stockholder Meeting”), within 20 days which shall be called as promptly as practicable after the date hereof, but in no event later than July 1, 2011 (the “Stockholder Meeting Deadline”), a proxy statement (the “Proxy Statement”), in a form reasonably acceptable to the Buyers after review by Xxxxxxx Xxxx & Xxxxx LLP at the expense of the Original AgreementCompany, soliciting each such stockholder’s affirmative vote at the Company will file with Stockholder Meeting for approval of resolutions (the SEC a preliminary proxy statement relating to a special stockholders meeting at which “Resolutions”) providing for (x) the Company’s stockholders will be asked to approve the transactions that are the subject issuance of all of the Investor Agreements Securities as described in the Transaction Documents in accordance with Rule 312.03 applicable law, the provisions of the NYSE Listed Company Manual. The Company will include Bylaws and the rules and regulations of the Principal Market including Rule 5635(a) and (d) of the NASDAQ Listing Rules (such affirmative approval being referred to herein as the “Principal Market Stockholder Approval”) and (y) an increase in the proxy statement the unanimous recommendation authorized shares of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations Common Stock of the Company to hold not less than 100,000,000 shares of Common Stock and any actions required to cause such increase to occur (such affirmative approval being referred to herein as the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed “Authorized Share Stockholder Approval”, and collectively with the SEC prior to the date of the Original AgreementPrincipal Market Stockholder Approval, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the “Company filing such preliminary proxy statement with the SECStockholder Approval”), and to provide comments thereon, which comments the Company shall give due solicit its stockholders’ approval of the Resolutions and reasonable considerationcause the Board of Directors to recommend to the stockholders that they approve the Resolutions. In connection therewith, the Company shall, at its expense, hire Xxxxxxxxx Inc. or another proxy solicitation firm acceptable to Kingsbrook to solicit the Authorized Share Stockholder Approval and the Principal Market Stockholder Approval. The Company will provide any comments received from shall be obligated to seek to obtain the SEC to Principal Market Stockholder Approval and the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with Authorized Share Stockholder Approval by the Investors and their counsel and, to Stockholder Meeting Deadline. If (i) the extent it Principal Market Stockholder Approval is not unreasonable for it to do soobtained at the Stockholder Meeting, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will shall cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable within six (6) months of the initial Stockholder Meeting and no more than 40 days after each calendar quarter thereafter with respect to the Resolutions relating to the Principal Market Stockholder Approval until Principal Market Stockholder Approval is obtained and (ii) the Authorized Share Stockholder Approval is not obtained at the Stockholder Meeting, the Company distributes shall cause an additional Stockholder Meeting to be held within six (6) months of the proxy statement initial Stockholder Meeting and each calendar quarter thereafter with respect to its stockholdersthe Resolutions relating to the Authorized Share Stockholder Approval until the Authorized Share Stockholder Approval is obtained; provided, that in each case, the Company shall not be required to obtain either the Principal Market Stockholder Approval or the Authorized Share Stockholder Approval if the W.E.T. Acquisition is not consummated.

Stockholder Approval. Unless As promptly as practicable following the NYSE informs date of this Agreement (and in any event within twenty (20) Business Days following the Closing Date), the Company shall prepare and file a proxy statement prepared and filed with the Commission (the “Proxy Statement”) that includes a proposal for approval by the holders of Common Stock to approve the issuance of Common Stock upon exercise or conversion of the Warrants and Series A Convertible Preferred Stock of the Company issued to Purchasers pursuant to this Agreement as required under the listing standards of NYSE rules (and any successor thereto and any other trading market on which the Common Stock is listed), including Rule Section 312.03 of the NYSE Listed Company ManualManual (the “Stockholder Approval”) do not require (whether because at a special meeting of the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject “Company Stockholder Meeting”). Subject to the directors’ fiduciary duties, the Proxy Statement shall include the recommendation from the Board of Directors and the transaction committee of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject in favor of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable considerationStockholder Approval. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult solicit from the stockholders proxies in favor of the Stockholder Approval and to obtain the Stockholder Approval. Each Purchaser and its Affiliates agree to furnish to the Company all information concerning such Purchaser and its Affiliates as the Company may reasonably request in connection with the Investors preparation and their counsel and, filing of the Proxy Statement and any such special meeting of the stockholders of the Company. The Company shall respond reasonably promptly to any comments received from the Commission with respect to the extent it is not unreasonable Proxy Statement. The Company shall provide to each Purchaser, as promptly as reasonably practicable after receipt thereof, any written comments from the Commission or any written request from the Commission or its staff for it amendments or supplements to do sothe Proxy Statement and shall provide each Purchaser with copies of all correspondence between the Company, on the one hand, and the Commission and its staff, on the other hand, relating to resolve and comply with all the Proxy Statement. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or, in each case, any amendment or supplement thereto) or responding to any comments of the Commission or its staff with respect thereto, the Company shall provide the Purchasers with a reasonable opportunity to review and comment on such document or response. The Company shall, as promptly as practicable following the date on which the Commission confirms that it has no further comments on the Proxy Statement, (i) take all action required, including under the DGCL, the Company’s Organizational Documents and the applicable rules of the SEC promptlyNYSE, to establish a record date for and to give notice of the Company Stockholder Meeting, (ii) cause the proxy statement Proxy Statement to be filed in definitive form and distributed mailed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the record date established for the Company is informed by Stockholders’ Meeting and (iii) take all action reasonably required, including under the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which DGCL, the Company’s stockholders will be asked to approve Organizational Documents and the transactions that are the subject applicable rules of the Investor Agreements NYSE, to be held as promptly as practicable duly call, convene and no more than 40 days after hold the Company distributes Stockholders’ Meeting as soon as reasonably practicable following the proxy statement mailing of the Proxy Statement to its the Company’s stockholders.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days As promptly as practicable after the date of Issue Date (and in any event no later than thirty Business Days after the Original AgreementIssue Date), the Company will agrees to prepare and file a proxy statement (the “Proxy Statement”) with the SEC that includes, to the extent required by the listing rules of the NYSE, a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked proposal to approve the transactions that are issuance of shares of Common Stock to the subject Holders in connection with any future conversion of the Investor Agreements in accordance with Rule 312.03 of Notes (the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the “Stockholder Approval”) at a special meeting of the Company’s stockholders contemplated by this Agreementshareholders (the “Stockholder Meeting”), which will be held as soon as practicable after the Issue Date. If the preliminary proxy statement has not been filed with the SEC prior Subject to the date directors’ fiduciary duties, the Proxy Statement shall include the Board’s recommendation that the stockholders vote in favor of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable considerationStockholder Approval. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult solicit from the stockholders proxies in favor of the Stockholder Approval and to obtain the Stockholder Approval. The Holders and their Affiliates agree to furnish to the Company all information concerning the Holders and their Affiliates as the Company may reasonably request in connection with the Investors Proxy Statement and their counsel and, the Stockholder Meeting. The Company shall respond reasonably promptly to any comments received from the SEC with respect to the extent it is not unreasonable Proxy Statement. The Company shall provide to each Holder who owns more than 10% of the Notes, as promptly as reasonably practicable after receipt thereof, any written comments from the Commission or any written request from the SEC or its staff for it amendments or supplements to do sothe Proxy Statement and shall provide each such Holder with copies of all correspondence between the Company, on the one hand, and the SEC and its staff, on the other hand, relating to resolve and comply with all the Proxy Statement. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or, in each case, any amendment or supplement thereto) or responding to any comments of the SEC or its staff with respect thereto, the Company shall provide each Holder who owns more than 10% of the Notes with a reasonable opportunity to review and comment on such document or response. The Company shall, as promptly as practicable following the date on which the SEC promptlyconfirms that it has no further comments on the Proxy Statement, (i) take all action required to establish a record date for and to give notice of the Stockholder Meeting, (ii) cause the proxy statement Proxy Statement to be filed in definitive form and distributed mailed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard record date established for the Stockholder Meeting and (iii) take all action reasonably required to duly call, convene and hold the proxy statement. The Company will cause Stockholder Meeting as soon as reasonably practicable following the stockholders meeting mailing of the Proxy Statement to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholders.

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject “Stockholder Meeting”), which shall be promptly called and held not later than October 15, 2024 (the “Stockholder Meeting Deadline”), a proxy statement, in each case, in a form reasonably acceptable to the Required Holder, at the expense of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreementsstatement, unlessif any, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting solicit each of the Company’s stockholders contemplated by this Agreement. If stockholder’s affirmative vote at the preliminary proxy statement has not been filed with Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for (x) the SEC prior to the date increase of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance authorized shares of Common Stock of the Company filing such preliminary proxy statement from 100,000,000 to 1,000,000,000 (the “Increase in Authorized”) and/or a reverse stock split of the issued and outstanding shares of Common Stock of the Company resulting in a similar impact on the Company’s authorized but unissued shares of Common Stock and (y) the approval of any matters requiring stockholder approval pursuant to the listing requirements of the Principal Market including, without limitation the issuance of more than 20% of the outstanding shares of Common Stock, in connection with the SECtransactions contemplated hereby (such affirmative approval being referred to herein as the “Stockholder Approval”, and to provide comments thereonthe date such Stockholder Approval is obtained, which comments the “Stockholder Approval Date”), and the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be filed in definitive form and distributed obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard shall cause an additional Stockholder Meeting to the proxy statementbe held on or prior to July 31, 2024. The Company will cause the stockholders meeting to which the proxy statement relates and at which If, despite the Company’s stockholders will be asked to approve reasonable best efforts the transactions that are Stockholder Approval is not obtained after such subsequent stockholder meetings, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderssemi-annually thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless (a) Subject to the NYSE informs provisions of Section 6.10, the Board of Directors of Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the resolved to recommend to Company’s stockholders of the transactions that are the subject of the Investor Agreementsthey adopt this Agreement and, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements unless this Agreement is previously terminated in accordance with Rule 312.03 its terms, will submit to its stockholders this Agreement and any other matters required to be approved by its stockholders in order to carry out the intentions of this Agreement. In furtherance of that obligation, Company shall duly take, in accordance with applicable law and the certificate of incorporation and bylaws of Company, all reasonable action necessary to set a record date for (with at least 20 business days’ prior notice to Purchaser of such record date) (the “Record Date”) and call, give notice of, convene and hold a meeting of its stockholders (the “Company Stockholders’ Meeting”), as promptly as reasonably practicable after Purchaser has obtained the SEC’s declaration of effectiveness of the NYSE Listed Form S-4, for the purpose of obtaining the Company ManualStockholder Approval. The the immediately preceding sentence of 6.3 Subject to the provisions of Section 6.10, Company will include in the proxy statement the unanimous recommendation of shall, through its Board of Directors that Directors, recommend to its stockholders the Company’s stockholders vote to approve approval and adoption of this Agreement (the transactions that are the subject of the Investor Agreements“Company Recommendation”), unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with obtain from its stockholders the Investors and their counsel andCompany Stockholder Approval. Notwithstanding any Change in Company Recommendation, this Agreement shall be submitted to the extent it is not unreasonable stockholders of Company at the Company Stockholders’ Meeting for it the purpose of obtaining the Company Stockholder Approval and nothing contained herein shall be deemed to do so, to resolve and comply with all comments relieve Company of such obligation so long as Purchaser has obtained the SEC’s declaration of effectiveness of the staff Form S-4; provided, however, that if the Board of Directors of Company shall have effected a Change in Company Recommendation in accordance with Section 6.10, then the SEC promptly, and Board of Directors of Company shall submit this Agreement to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after without the Company is informed by Recommendation (although the staff resolutions adopting this Agreement as of the SEC that they have no further comments with regard date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will in the Proxy Statement or an appropriate amendment or supplement thereto if the Board of Directors determines that to fail to take such action would be asked to approve the transactions that are the subject of the Investor Agreements reasonably likely to be held as promptly as practicable and no more than 40 days after inconsistent with its fiduciary duties under applicable law; provided, that for the avoidance of doubt, Company distributes may not take any action under this sentence unless it has complied with the proxy statement provisions of Section 6.10. Subject to Section 6.10, in addition to the foregoing, neither Company nor the Board of Directors of Company shall recommend to its stockholdersstockholders or submit to the vote of its stockholders any Third Party Acquisition other than the Merger.

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special or annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject "Stockholder Meeting"), which shall be promptly called and held not later than June 30, 2006 (the "Stockholder Meeting Deadline"), a proxy statement, substantially in the form which shall have been previously reviewed by the Investor and Xxxxxxx Xxxx & Xxxxx LLP (which review shall be completed within five (5) Business Days of such counsel's receipt of the Investor Agreementsproxy statement and such review requirement shall be waived if such counsel has not completed its review within such five (5) Business Day period), within 20 days after soliciting each such stockholder's affirmative vote at the date Stockholder Meeting for approval of resolutions providing for the Company's issuance of all of the Original Agreement, Replacement Warrants and the Company will file with Replacement Warrants Shares issuable upon the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements exercise thereof in accordance with Rule 312.03 applicable law and the rules and regulations of the NYSE Listed Company Manual. The Company will include in Principal Market (such affirmative approval being referred to herein as the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless"Stockholder Approval"), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders' approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to be filed in definitive form and distributed recommend to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statementapprove such resolutions. The Company will cause shall be obligated to use its reasonable best efforts to obtain the stockholders meeting to which Stockholder Approval by the proxy statement relates and at which Stockholder Meeting Deadline. If, despite the Company’s stockholders will be asked 's reasonable best efforts the Stockholder Approval is not obtained on or prior to approve the transactions that are Stockholder Meeting Deadline, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and every four (4) months thereafter until such Stockholder Approval is obtained or the Notes are no more longer outstanding. As used herein, "Business Day" means any day other than 40 days after the Company distributes the proxy statement Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to its stockholdersremain closed.

Stockholder Approval. Unless (a) As expeditiously as possible following the NYSE informs the Company that the NYSE rules (including Rule 312.03 execution of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, Agreement and in any event within five Business Days (5) business days after the execution of this Agreement, the Company is informed shall mail the Disclosure Statement to the Company Stockholders. The Disclosure Statement shall include (i) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Indemnifying Stockholders, the escrow arrangements and the authority of the Indemnification Representative, and a statement that the adoption of this Agreement by the staff stockholders of the SEC Company shall constitute approval of such terms), (ii) a statement that they have no further comments with regard appraisal rights are available for the Company Shares pursuant to Section 262 of the proxy statementDelaware General Corporation Law and a copy of such Section 262, and all other relevant information. Buyer shall supply all information reasonably required by the Company for purposes of the Disclosure Statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held shall use its Reasonable Best Efforts to, as promptly as practicable reasonably possible following the execution of this Agreement, secure and no more than 40 days after cause to be filed with the Company distributes written consents from Company Stockholders necessary to secure the proxy statement Requisite Stockholder Approval. As promptly as reasonably possible following its receipt of the Requisite Stockholder Approval, the Company shall deliver to the Buyer a certificate executed on behalf of the Company by its stockholdersSecretary and certifying that the Requisite Stockholder Approval has been obtained, together with copies of the written consents evidencing such Requisite Stockholder Approval. The Company shall also send, pursuant to Sections 228 and 262(d) of the Delaware General Corporation Law, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the stockholders of the Company and that appraisal rights are available for their Company Shares pursuant to Section 262 of the Delaware General Corporation Law (which notice shall include a copy of such Section 262), and shall promptly inform the Buyer of the date on which such notice was sent.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors covenants that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult obtain stockholder approval of the exercise of the Warrants into Shares in accordance with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments rules of the staff Nasdaq Stock Market (the “Stockholder Approval”) and in excess of the SEC promptlyAlternate Beneficial Ownership Limitation for any holder of Warrants together with its Affiliates and Attribution Parties at the Company’s 2024 annual meeting of stockholders (the “Annual Meeting”), which the Company intends to hold during calendar year 2024, provided, however, that, at the Company’s election, the Company may instead call a special meeting of its stockholders (the “Special Meeting”) before the Annual Meeting in order to obtain the Stockholder Approval. In no event will the Stockholder Approval increase the Beneficial Ownership Limit or the Alternate Beneficial Ownership Limit in the Warrant Agreements to be higher than 49.9%, and in no event will the Stockholder Approval provide for a holder of any Warrant to be able to exercise such Warrant if the beneficial ownership of the holder, together with its Affiliates or Attribution Parties (as defined in the Warrant Agreements) would exceed 49.9% of the outstanding shares of the Company’s Common Stock. The Company shall use its reasonable best efforts to solicit its stockholders’ approval of such resolution and to cause the proxy statement its board of directors to be filed in definitive form and distributed recommend to the stockholders that they approve such resolution. If the Stockholder Approval is not obtained at the Annual Meeting (or at a Special Meeting called prior to the Annual Meeting, at the election of the Company’s stockholders as promptly as practicable), either by mail or by notice of internet access, and in any event within five Business Days after the Company shall use its reasonable best efforts to obtain the Stockholder Approval at its 2025 annual meeting of stockholders (the “2025 Annual Meeting”). If the Stockholder Approval is informed by not obtained before or at the staff of 2025 Annual Meeting, then the SEC that they have Company shall no further comments with regard longer be obligated to seek to obtain the proxy statementStockholder Approval. The Purchasers agree that the Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will not be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after liable for any penalty, damages, or other remedy if the Company distributes fails, after using its reasonable best efforts in accordance with this Agreement, to obtain the proxy statement to its stockholdersStockholder Approval.

Stockholder Approval. (a) Unless the NYSE informs this Agreement has been terminated pursuant to Section 5.1, the Company shall call a special meeting of its stockholders promptly following the Closing but in any event not later than 180 days following the Closing (such meeting, the “Initial Stockholder Meeting”), to submit the Stockholder Proposal to its stockholders for approval. In the event that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do Stockholder Proposal is not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval approved by the Company’s stockholders of at the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original AgreementInitial Stockholder Meeting, the Company shall call another meeting of its stockholders (which may be a special meeting or Company’s 2009 annual meeting) by not later than the first anniversary of the Closing Date to submit the Stockholder Proposal to its stockholders for approval (the “Subsequent Stockholder Meeting”). The Board of Directors has unanimously adopted a resolution to recommend to the Company’s stockholders that such stockholders vote in favor of the Stockholder Proposal. In connection with both the Initial Stockholder Meeting and the Subsequent Stockholder Meeting, if any, the Company shall timely prepare (and the Investor will reasonably cooperate with the Company to prepare) and file with the SEC a preliminary proxy statement, shall use its reasonable best efforts to respond to any comments of the SEC or its staff and to cause a definitive proxy statement relating related to a special stockholders such stockholders’ meeting at which to be mailed to the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, a timely manner after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated clearance thereof by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with solicit proxies for such stockholder approval. The Company shall notify the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments Investor promptly of the staff receipt of any comments from the SEC promptly, and or its staff with respect to cause the proxy statement and of any request by the SEC or its staff for amendments or supplements to such proxy statement or for additional information and will supply the Investor 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 such proxy statement. If at any time prior to such stockholders’ meeting there shall occur any event that is required to be filed set forth in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail an amendment or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard supplement to the proxy statement. The , the Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held shall as promptly as practicable prepare and no more than 40 days after mail to its stockholders such an amendment or supplement. Each of the Investor and the Company distributes agrees promptly to correct any information provided by it or on its behalf for use in the proxy statement if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall as promptly as practicable prepare and mail to its stockholders an amendment or supplement to correct such information to the extent required by applicable laws and regulations. The Company shall consult with the Investor prior to filing such proxy statement, or any amendment or supplement thereto, and provide the Investor with a reasonable opportunity to comment thereon; provided, however, that the Company shall retain the right to determine the final content of such proxy statement and any amendment or supplement thereto. The Investor agrees to promptly furnish the Company all information concerning itself, its Affiliates, directors, officers, partners and stockholders and such other matters as may be reasonably necessary or advisable in connection with the proxy statement in connection with any such stockholders’ meeting. Unless this Agreement has been terminated pursuant to Section 5.1, the Investor hereby agrees that at any meeting of the stockholders of the Company held to vote on the Stockholder Proposal, however called, the Investor shall vote, or cause to be voted, all of the shares of Common Stock Beneficially Owned by Investor and its Affiliates in favor of the Stockholder Proposal.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, shall prepare and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement file with the SEC, on or before April 15, 2023 a proxy statement, in substantially the form which has been previously reviewed by the Buyers and Sxxxxxx Rxxx & Zxxxx LLP, at the expense of the Company, for an annual or special meeting of holders of Common Stock (the “Stockholder Meeting”) soliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of resolutions (the “Stockholder Resolutions”) providing for the issuance of all the shares of Common Stock issuable pursuant to provide comments thereonthe terms of the Notes and Warrants without giving effect to any limitations on conversion or exercise provided therein in compliance with the rules and regulations of the Principal Market. The Stockholder Meeting shall be promptly called and held not later than June 30, which comments 2023 (the Company shall give due and reasonable consideration“Stockholder Meeting Deadline”). The Company will provide any comments received from the SEC shall be obligated to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult solicit its stockholders’ approval of the Stockholder Resolutions including, without limitation, by (x) causing the Board of Directors of the Company to unanimously recommend to the stockholders of the Company that they approve such resolutions, (y) using reasonable best efforts to cause its officers and directors who hold shares of Common Stock to be present at the Stockholder Meeting for quorum purposes (including by proxy) and (z) using reasonable best efforts to cause such officers and directors to vote their respective shares of Common Stock in accordance with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments recommendation of the staff Board of Directors of the SEC promptlyCompany. The Company shall be obligated to use its reasonable best efforts to obtain approval of the Stockholder Resolutions by the Stockholder Meeting Deadline. If, and to cause despite the proxy statement to be filed in definitive form and distributed to Company’s reasonable best efforts the Stockholder Resolutions are not approved by the Company’s stockholders as promptly as practicableon or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will shall cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable every three (3) months thereafter until such approvals are obtained or the Notes and Warrants are no more than 40 days after longer outstanding. Notwithstanding the foregoing, failure to receive such approval shall not relieve the Company distributes the proxy statement to of its stockholdersobligations hereunder.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 Within 45 days of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original AgreementClosing, the Company will shall file with the SEC a preliminary proxy statement relating statement, in a form reasonably acceptable to the Buyers, soliciting the affirmative votes of each of its stockholders of record for approval of resolutions providing for (i) the issuance of the Securities, including, for the avoidance of doubt, the approval of a special stockholders meeting at which change of control of the Company’s stockholders will be asked to approve , in compliance with the transactions that are the subject rules and regulations of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include Principal Market and (ii) an increase in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations authorized shares of the Company to hold ensure that the meeting number of authorized shares is sufficient to meet the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to Required Reserve Amount (“Stockholder Approval” and the date of the Original Agreementon which such Stockholder Approval is obtained, the Investors “Stockholder Approval Date”) and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with to, at the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments expense of the staff Company, solicit its stockholders’ approval of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall hold a special meeting of stockholders (the “Stockholder Meeting”) for purposes of Stockholder Approval no later than August 1, 2024 (the “Stockholder Meeting Deadline”), and the Company shall be filed in definitive form and distributed obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard shall cause an additional Stockholder Meeting to the proxy statementbe held within 90 days later. The Company will cause the stockholders meeting to which the proxy statement relates and at which If, despite the Company’s stockholders will be asked to approve reasonable best efforts the transactions that are Stockholder Approval is not obtained after such subsequent stockholder meetings, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after semi-annually thereafter until such Stockholder Approval is obtained. Notwithstanding the above, the Company distributes shall not be required to hold a Stockholder Meeting or seek Stockholder Approval any time following the proxy statement time when the Preferred Shares are no longer outstanding if upon full exercise of the Warrants, the shares of Common Stock issued pursuant to the Preferred Shares and Warrants would not exceed the Exchange Cap (as defined in the Certificate of Designations). Each Buyer covenants to vote, and shall cause its stockholdersaffiliates to vote, all Preferred Shares owned by such Buyer or its affiliates, as applicable, in respect of any resolution presented to the stockholders of the Company for the purpose of obtaining the Stockholder Approval. For clarity, the Buyer’s agreement to vote its Preferred Shares in accordance with the foregoing sentence, does not require the Buyer to vote such shares for or against any other proposal or proposals, whether or not such other proposal or proposals are recommended by the Board of Directors.

Stockholder Approval. Unless (a) As promptly as reasonably practicable after the NYSE informs execution of this Agreement but in any event not more than three (3) Business Days after the date hereof, the Company shall prepare an amendment to the Company Proxy Statement reflecting the amendments to the transactions contemplated by this Agreement as compared to the transactions contemplated by the Initial Investment Agreement and file it with the SEC (the “Amended Company Proxy Statement”). The Board of Directors has determined that the NYSE rules (including Rule 312.03 transactions contemplated by this Agreement and the Ancillary Documents are fair to and in the best interests of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement and its stockholders, has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by resolved to recommend to the Company’s stockholders that the holders of the transactions that are Common Stock approve the subject Charter Amendment, the issuance of the Investor AgreementsPurchased Shares, within 20 days after the date shares of Series A Preferred Stock pursuant to the Additional Investment and the Warrants to Investors, the issuance of the Original AgreementBackstop Agreement Shares to the Backstop Purchaser, the New LTIP and the other transactions contemplated hereunder and shall include such recommendation in the Amended Company will file Proxy Statement. Each Investor shall provide to the Company all information concerning such Investor and its Affiliates as may be reasonably requested by the Company in connection with the SEC a preliminary proxy statement relating to a special stockholders meeting at which Amended Company Proxy Statement and shall otherwise cooperate with the Company’s stockholders will be asked to approve Company in the transactions that are the subject preparation of the Investor Agreements in accordance with Rule 312.03 Amended Company Proxy Statement and the resolution of any comments thereto received from the SEC. Each of the NYSE Listed Company Manualand Investors shall promptly correct any information provided by it for use in the Amended Company Proxy Statement if and to the extent such information shall have become false or misleading in any material respect. The Company will include in shall notify Investors promptly upon the proxy statement receipt of any comments from the unanimous recommendation SEC and of any request by the SEC for any further amendments or supplements to the Amended Company Proxy Statement and shall supply Investors with copies of all written correspondence between the Company or any of its Board of Directors that representatives, on the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unlessone hand, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and on the other hand, with respect to provide comments thereon, which comments the Amended Company shall give due and reasonable considerationProxy Statement. The Company will provide shall use its commercially reasonable efforts to respond promptly to any comments received from the SEC concerning the Amended Company Proxy Statement and to resolve such comments with the Investors and their counsel as promptly as practicable upon receipt thereof SEC, and shall use its commercially reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement Amended Company Proxy Statement to be filed in definitive form and distributed disseminated to the Company’s its stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff resolution of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersany such comments.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote agrees to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult call and hold as promptly as reasonably practicable following the date of this Agreement (and in any event within 75 days of the date of this Agreement) a meeting of the stockholders of the Company (the “Stockholder Meeting”) to obtain the approval of the holders of a majority of the outstanding Common Stock, in accordance with applicable law and the bylaws of the Company, of a reverse stock split and/or an increase in the number of authorized shares of Common Stock, which permit the issuance of the Required Minimum (the “Stockholder Approval”). As promptly as reasonably practicable following the date hereof (and in any event within 10 calendar days after the date hereof), the Company will prepare and file with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments Commission a revised preliminary proxy statement. The definitive form of the staff of the SEC promptly, and to cause the such revised proxy statement to shall be filed in definitive form and distributed sent to the Company’s stockholders in connection with the Stockholder Meeting (the “Proxy Statement”). The Proxy Statement shall include the recommendation of the Board of Directors that the stockholders vote in favor of the Stockholder Approval. The Company shall use commercially reasonable efforts to solicit from the stockholders proxies in favor of the Stockholder Approval and to obtain the Stockholder Approval. The Company shall respond reasonably promptly to any comments received from the Commission with respect to any Proxy Statement. The Company shall provide to the Purchasers, as promptly as practicablereasonably practicable after receipt thereof, either by mail any written comments from the Commission or by notice any written request from the Commission or its staff for amendments or supplements to the Proxy Statement or any preliminary proxy statement as it relates to the Stockholder Approval and shall provide the Purchasers with copies of internet accessall correspondence between the Company, on the one hand, and the Commission and its staff, on the other hand, relating to the Proxy Statement as it relates to the Stockholder Approval. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or, in each case, any event within five Business Days after amendment or supplement thereto) or responding to any comments of the Commission or its staff with respect thereto as it relates to the Stockholder Approval, the Company is informed by shall provide the staff of the SEC that they have no further comments Purchasers with regard a reasonable opportunity to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates review and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderscomment on such document or response.

Stockholder Approval. Unless the NYSE informs The Company shall provide each stockholder entitled to vote at a special meeting of stockholders of the Company that (the NYSE rules (including Rule 312.03 “Stockholder Meeting”), which shall be promptly called and held not later than 90 calendar days from the date hereof, a proxy statement meeting the requirements of Section 14 of the NYSE Listed Company ManualExchange Act and the related rules and regulations thereunder promulgated by the Commission (“Proxy Statement”) do not require (whether because soliciting each such stockholder’s affirmative vote at the NYSE requirement has been satisfied by prior stockholder approvals, or because Stockholder Meeting for approval of an exception, a waiver or otherwise) approval by resolutions approving the Company’s stockholders issuance of the transactions that are the subject Warrant Securities and any shares of Common Stock issued or issuable upon conversion of the Investor Agreements, within 20 days after the date Series A Preferred Stock and exercise of the Original AgreementCommon Stock Purchase Warrants and any other securities issuable pursuant to the Certificate of Designation and the Series B Certificate of Designation and all the other transactions contemplated by the Transaction Documents and this Agreement (including, without limitation, increase in the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject size of the Investor Agreements Board of Directors as necessary to elect the Series B Director (as defined in the Registration Rights Agreement)) (the “Stockholder Approval”) in accordance with Rule 312.03 law and the rules and regulations of the NYSE Listed Company Manual. The Company will include in Nasdaq Global Market (or any other applicable Trading Market) and the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unlessDelaware General Corporation Law, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to be filed in definitive form and distributed recommend to the Company’s stockholders as promptly as practicablethat they approve such resolutions. The Proxy Statement shall be in a form reasonably acceptable to the Holders and accordingly, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by shall provide the staff of Legal Counsel (as defined in the SEC that they have no further comments Registration Rights Agreement) with regard reasonable opportunity to review and comment on the proxy statementProxy Statement. The Company will cause shall keep the stockholders meeting Holders apprised of the status of matters relating to which the proxy statement relates Proxy Statement and at which the Company’s stockholders will be asked Stockholder Meeting, including promptly furnishing the Holders and their counsel with copies of notices or other communications related to approve the Proxy Statement, the Stockholder Meeting or the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after contemplated hereby received by the Company distributes from the proxy statement to its stockholdersCommission or the Nasdaq Global Market.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation shall call a meeting of its Board of Directors that stockholders (the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements “First Stockholder Meeting”) to be held as promptly as practicable (but in any event no later than 60 days from the date hereof) for the purpose of obtaining Stockholder Approval. The Company shall, upon filing the applicable proxy statement with the SEC, (i) recommend to its stockholders approval of such matters sufficient to obtain Stockholder Approval, (ii) use its best efforts to solicit from its stockholders proxies in favor of such matters, and no more than 40 days after (iii) vote such proxies, and use its best efforts to cause all “affiliates” (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) of the Company distributes to vote any shares of Common Stock beneficially owned by such persons or entities (or cause such shares to be voted), in favor of such matters. In connection with its obtaining Stockholder Approval, the Company shall file with the SEC all statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act, and prior to each such filing, shall provide the Purchasers a reasonable period of time to review and comment on the information included therein. If Stockholder Approval has not been obtained within 60 days of the date hereof, the Company shall immediately notify the Purchasers of such failure, and the Company and its Board of Directors shall continue to use best efforts to obtain Stockholder Approval and shall include in the Company’s proxy statement materials for the next annual meeting of the Company’s stockholders (the “Second Stockholder Meeting”), and for each successive annual meeting of the Company’s stockholders until Stockholder Approval is obtained, a request for Stockholder Approval, and, unless the Board of Directors receives an opinion of counsel advising that such recommendation would constitute a breach of the Directors’ fiduciary duties imposed by applicable law, shall recommend without qualification that the Company’s stockholders vote in favor of such approval. All expenses related to its stockholdersthe solicitation of proxies with respect to, or otherwise incurred in connection with, obtaining Stockholder Approval shall be borne by the Company. If Stockholder Approval is not been obtained at the First Stockholder Meeting, the Second Stockholder Meeting shall be held as promptly as practicable (but in any event no later than May 15, 2005).

Stockholder Approval. Unless The Company shall (a) as promptly as possible following the NYSE informs date hereof (but not later than thirty (30) days following the Company that the NYSE rules (including Rule 312.03 Closing), call a special meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (a “Special Meeting”) for the subject purpose of approving and authorizing, in accordance with NASDAQ rules, the terms of the Investor AgreementsTransaction Documents, within 20 days after including the conversion by the Purchasers of the Convertible Notes into shares of Preferred Stock, the issuance by the Company of such shares of Preferred Stock, and the anti-dilution provisions of the Warrants (the “Proposal”); (b) as promptly as possible following the date of hereof (but not later than thirty (30) days following the Original AgreementClosing), the Company will file with the SEC Commission a preliminary proxy statement, which shall have previously been provided to the Purchasers for their review, soliciting stockholders’ affirmative vote in favor of the Proposal; (c) use commercially reasonable efforts to solicit its stockholders’ affirmative approval of such Proposal and to cause the Board to recommend and continue recommending to the stockholders that they approve such Proposal; (d) use commercially reasonable efforts to respond to any comments of the Commission or its staff with respect thereto; (e) cause a definitive proxy statement relating to a special stockholders meeting at which the Company’s stockholders will Special Meeting to be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors Commission and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed mailed to the Company’s stockholders as promptly soon as practicable, either by mail or by notice possible; (f) hold the Special Meeting as soon as possible following the mailing of internet access, and in any event within five Business Days after the definitive proxy statement; (g) if the stockholders of the Company is informed do not approve such Proposal authorizing such conversion and issuance at such Special Meeting, use commercially reasonably efforts to hold a second Special Meeting to authorize and approve the same as soon as reasonably practicable and to enter into new Voting Agreements with those stockholders whose Voting Agreements will have expired by such second Special Meeting; and (h) enforce the staff provisions of each of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates Voting Agreements and at which the Company’s stockholders will be asked rights thereunder. In addition, the Company shall not agree to any amendment or waiver of any provision of any Voting Agreement without the prior written consent of the Required Purchasers. Purchasers shall not have the right to vote the Preferred Stock at any Special Meeting to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersProposal.

Stockholder Approval. Unless If at any time the NYSE informs Exchange Cap (as defined in the Notes) would limit the aggregate number of shares of Common Stock which the Company that the NYSE rules (including Rule 312.03 may issue upon conversion or exercise, as applicable, of the NYSE Listed Notes and Warrants, at the written request of holders of a majority of the Conversion Shares and Warrant Shares outstanding at such time (as determined assuming full conversion of the Notes and full exercise of the Warrants prior to such date without taking into account any limitations on the conversion of the Notes or exercise of the Warrants set forth in the Notes and Warrants, respectively) (the date of such request, the “Stockholder Meeting Request Date”), the Company Manualshall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the Company (the “Stockholder Meeting”), which shall be promptly called and held not later than ninety (90) do not require calendar days after the Stockholder Meeting Request Date (whether because the NYSE requirement “Stockholder Meeting Deadline”), a proxy statement, substantially in the form which has been satisfied previously reviewed by prior stockholder approvalsthe Buyers, or because soliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of an exception, a waiver or otherwise) approval by resolutions providing for the Company’s stockholders issuance of all of the transactions that are Securities as described in the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Transaction Documents in accordance with Rule 312.03 applicable law and the rules and regulations of the NYSE Listed Company Manual. The Company will include in Principal Market and such affirmative approval being referred to herein as the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless“Stockholder Approval”), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be filed in definitive form and distributed obligated to use its reasonable best efforts to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will shall cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable and every six (6) months thereafter until such Stockholder Approval is obtained or the Notes are no more than 40 days after the Company distributes the proxy statement to its stockholderslonger outstanding.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts Reasonable Best Efforts to consult with the Investors and their counsel andobtain, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, the Requisite Stockholder Approval, either at a special meeting of stockholders or pursuant to a written stockholder consent, all in accordance with the applicable requirements of the CCC. In connection with such special meeting of stockholders or written stockholder consent, the Company shall provide to its stockholders the Notice Materials required pursuant to the California Fairness Hearing, to include without limitation (A) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the consideration to be received by mail or by notice each Company Stockholder, the indemnification obligations of internet accessthe Company Stockholders, the Escrow Agreements and the authority of the Indemnification Representatives, and in any event within five Business Days after a statement that the adoption of this Agreement by the stockholders of the Company is informed by the staff shall constitute approval of such terms), (B) all of the SEC information required by Rule 502(b)(2) of Regulation D under the Securities Act in connection with satisfying the requirements of the California Fairness Hearing, and (C) a statement that they have no further comments with regard dissenters' rights are available for the holders of shares of Company Common Stock and holders of shares of Company Preferred Stock pursuant to Chapter 13 of the proxy statementCCC. The Company will cause agrees to cooperate with the Buyer in the preparation of the Notice Materials. The Company agrees not to distribute the Notice Materials until the Buyer has had a reasonable opportunity to review and comment on the Notice Materials and the Notice Materials have been approved by the Buyer (which approval may not be unreasonably withheld or delayed). If any stockholder holds Dissenting Shares, then the Company shall send, pursuant to Section 1301 of the CCC, a written notice to all stockholders of the Company that did not execute such written consent or that did not otherwise approve the principal terms of the Merger and other transactions contemplated thereby, informing them that the principal terms of the Merger and other transactions contemplated thereby have been approved by the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Company and that dissenters' rights are available for their shares of Common Stock and shares of Preferred Stock pursuant to be held as Chapter 13 of the CCC (which notice shall include a copy of such Chapter), and shall promptly as practicable and no more than 40 days after inform the Company distributes Buyer of the proxy statement to its stockholdersdate on which such notice was sent.

Stockholder Approval. Unless Under the NYSE informs DGCL, if we acquire, pursuant to the Company that the NYSE rules (including Rule 312.03 Offer or otherwise, at least 90% of the NYSE Listed outstanding Class A Shares, we believe we could, and we intend to, effect a merger under the short-form merger provisions of the DGCL without prior notice to, or any action by, any other Company Manual) stockholder. If we do not require (whether because acquire at least 90% of the NYSE requirement has been satisfied by prior stockholder approvalsoutstanding Class A Shares, or because we will have to seek approval of an exception, a waiver or otherwise) approval the Merger Agreement and the Merger by the Company’s stockholders stockholders. Approval of the transactions that are Merger Agreement and the subject Merger requires the approval of holders of not less than a majority of the Investor Agreementsoutstanding Class A Shares, within 20 days after including the date Class A Shares owned and purchased by us pursuant to the Offer. Thus, assuming that the Minimum Condition is satisfied, upon consummation of the Original Offer, we would own sufficient Shares to enable us, without the vote of any other Company stockholder, to satisfy the stockholder approval requirement to approve the Merger. Pursuant to the Merger Agreement, if required by law, the Company will has agreed (i) to call, give notice of, convene and hold a special meeting of the Company’s Class A Stockholders as soon as reasonably practicable following the Acceptance Time for the purpose of considering and taking action upon the Merger Agreement; and (ii) to prepare and file with the SEC a preliminary proxy or information statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve Merger and the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, Merger Agreement and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts (A) to consult obtain and furnish the information required to be included by the SEC in the Proxy Statement (as defined below) and, after consultation with 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 (together with any amendments 27 Table of Contents and supplements thereto, the “Proxy Statement”) to be mailed to the Class A Stockholders as soon as reasonably practicable, and (B) to obtain the necessary approvals of Merger and the Merger Agreement by the Class A Stockholders. Rule 13e-3. The SEC has adopted Rule 13e-3 under the Exchange Act, which is applicable to certain “going private” transactions and which may under certain circumstances be applicable to the Merger or another business combination following the purchase of Shares pursuant to the Offer or otherwise in which Purchaser seeks to acquire the remaining Shares not held by it. If applicable, Rule 13e-3 requires, among other things, that certain financial information concerning the Company and certain information relating to the fairness of the proposed transaction and the consideration offered to minority stockholders in such transaction be filed with the Investors SEC and their counsel and, disclosed to stockholders prior to the extent it is not unreasonable for it to do so, to resolve and comply with all comments consummation of the staff of the SEC promptlytransaction. Purchaser and Parent believe, and to cause the proxy statement to however, that Rule 13e-3 will not be filed in definitive form and distributed applicable to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event Merger if the Merger is consummated within five Business Days one year after the Company is informed by Acceptance Time at the staff of same per share price as paid in the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersOffer.

Stockholder Approval. Unless (i) At the NYSE informs Company’s first annual general meeting of stockholders of the Company that (the NYSE rules “Company Stockholders”) following the date of this Note (including Rule 312.03 the “First Annual General Meeting”) which shall be held as soon as practical after the date of this Note, but not later than July 31 2023, the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) will use its reasonable best effort to obtain approval by from the Company’s stockholders for (i) the conversion features of the transactions that are Notes, the subject issuance of the Investor AgreementsConversion Shares, within 20 days after the date issuance of the Original AgreementWarrants and the Warrant Shares, and (ii) the conversion features of the Short Term Promissory Note issued to the Holder on July 25, 2022 and the issuance of the related warrants, as required by, and in conformity, with applicable New York Stock Exchange Continuing Listing Rules (“Stockholder Approval”); provided that the parties acknowledge that such First Annual General Meeting may be postponed or adjourned in accordance with the Company’s bylaws or as otherwise required by Applicable Law if (x) there is an insufficient number of shares of Common Stock present or represented by a proxy at the First Annual General Meeting to conduct business at the Company Stockholder Meeting, (y) the Company is required to postpone or adjourn the First Annual General Meeting by Applicable Law or a request from the Commission or its staff, or (z) the Company determines in good faith that it is necessary or appropriate to postpone or adjourn First Annual General Meeting in order to give the Company Stockholders sufficient time to evaluate any information or disclosure that the Company has sent or otherwise made available to them. If, despite the Company’s reasonable best efforts the Requisite Stockholder Approval is not obtained at or prior to the First Annual General Meeting, the Company will file with the SEC shall seek to obtain such Stockholder Approval at a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 stockholders of the NYSE Listed Company Manualsemi-annually until such Stockholder Approval is obtained or the Notes are no longer outstanding. The Company will include shall notify Holder in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement writing when Stockholder Approval has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersobtained.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts Reasonable Best Efforts to consult with the Investors and their counsel andobtain, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail the Requisite Stockholder Approval, pursuant to a written stockholder consent, all in accordance with the applicable requirements of the Delaware General Corporation Law. In connection with such written stockholder consent, the Company shall provide to its stockholders a written consent solicitation or by notice information statement (the "Disclosure Statement") which includes (A) a summary of internet accessthe Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Company Stockholders, the escrow arrangements and the authority of the Indemnification Representatives, and in any event within five Business Days after a statement that the adoption of this Agreement by the stockholders of the Company is informed by the staff shall constitute approval of such terms), (B) all of the SEC information required by Rule 502(b)(2) of Regulation D under the Securities Act and (C) a statement that they have no further comments appraisal rights are available for the Company Shares pursuant to Section 262 of the Delaware General Corporation Law and a copy of such Section 262. The Buyer agrees to cooperate with regard to the proxy statementCompany in the preparation of the Disclosure Statement. The Company will cause agrees not to distribute the Disclosure Statement until the Buyer has had a reasonable opportunity to review and comment on the Disclosure Statement and the Disclosure Statement has been approved by the Buyer (which approval may not be unreasonably withheld or delayed). Following receipt of the Requisite Stockholder Approval, the Company shall send, pursuant to Sections 228 and 262(d) of the Delaware General Corporation Law, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Company and that appraisal rights are available for their Company Shares pursuant to be held as Section 262 of the Delaware General Corporation Law (which notice shall include a copy of such Section 262), and shall promptly as practicable and no more than 40 days after inform the Company distributes Buyer of the proxy statement to its stockholdersdate on which such notice was sent.

Stockholder Approval. Unless At the NYSE informs the Company that the NYSE rules (including Rule 312.03 next special or annual meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days Company with a record date after the date of this Agreement, which annual or special meeting shall be called and held not later than December 31, 2017 (the Original Agreement“First Stockholder Meeting”), the Company will file with shall take all action necessary to obtain the SEC a preliminary proxy statement relating to a special approval of its stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements issuance of all of the shares of Common Stock issuable under the Notes, without regard to any limitations on conversion set forth in the Notes, pursuant to and in accordance with Rule 312.03 the applicable rules and regulations of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that Trading Market, including, without limitation, NASDAQ Listing Rule 5635, if such rule is then applicable to the Company’s stockholders vote to approve , its Common Stock or any of the transactions that are contemplated by the subject of the Investor Agreements, unlessTransaction Documents, and solely to the extentarticles of incorporation, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw bylaws or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations other governing documents of the Company (such affirmative approval being referred to hold herein as the meeting “Stockholder Approval”, and the date such Stockholder Approval is obtained, the “Stockholder Approval Date”). In connection therewith, the Company shall provide each stockholder entitled to vote at the First Stockholder Meeting a proxy statement soliciting the affirmative vote of the Company’s stockholders contemplated by this Agreement. If necessary to obtain the preliminary proxy statement has not been filed with Stockholder Approval at the SEC prior to the date of the Original AgreementFirst Stockholder Meeting, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with solicit and obtain the Investors Stockholder Approval at the First Stockholder Meeting and their counsel andto cause the Board of Directors of the Company to recommend, to the extent it is not unreasonable for it to do sopossible consistent with its fiduciary duties under applicable law, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicablethat they vote to approve the Stockholder Approval proposal at the First Stockholder Meeting. If, either by mail despite the Company's reasonable best efforts the Stockholder Approval is not obtained at the First Stockholder Meeting, the Company shall seek to obtain the Stockholder Approval at each special or by notice annual meeting of internet access, and in any event within five Business Days stockholders of the Company convened after the First Stockholder Meeting (each such meeting, a “Subsequent Stockholder Meeting”). In connection therewith, the Company is informed by the staff of the SEC that they have no further comments with regard shall provide each stockholder entitled to the proxy statement. The Company will cause the stockholders meeting to which the vote at a Subsequent Stockholder Meeting a proxy statement relates and at which soliciting the affirmative vote of the Company’s stockholders will be asked necessary to obtain the Stockholder Approval at such Subsequent Stockholder Meeting, and the Company shall use its reasonable best efforts to solicit and obtain the Stockholder Approval at such Subsequent Stockholder Meeting and to cause the Board of Directors of the Company to recommend, to the extent possible consistent with its fiduciary duties under applicable law, to the Company’s stockholders that they vote to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersStockholder Approval proposal at such Subsequent Stockholder Meeting.

Stockholder Approval. Unless SAL xxall use diligent good faith efforts to solicit and obtain, within ten (10) days after the NYSE informs execution of this Agreement, the Company that the NYSE rules (including Rule 312.03 affirmative vote or written consent of the NYSE Listed Company Manual) do not require (whether because holders of SAL Xxock as to the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by Merger and this Agreement and the Company’s stockholders consummation of the transactions that are contemplated hereby. If SAL xxtains such consent and such consent is not unanimous, SAL xxall send notice promptly after the subject execution of this Agreement to the Stockholders in accordance with Section 228 of the Investor AgreementsDGCL. The Board of Directors of SAL xxall recommend the Merger, within 20 days after this Agreement and the date transactions contemplated hereby for approval and adoption by the Stockholders, and shall not subsequently amend, modify or withdraw such recommendation in any manner adverse to JMAR. Prior to or at the time of the Original initial solicitation of the Stockholders, SAL xxall provide to the Stockholders an information statement (the "Information Statement") to be prepared by JMAR and SAL, xhich shall contain information provided by JMAR regarding itself (including financial statements), information provided by SAL xxgarding SAL (xncluding financial statements), a description of the Merger and the material terms of this Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its SAL's Board of Directors that the Company’s stockholders vote for or grant their consent to approve the Merger and this Agreement and the consummation of the transactions that are contemplated hereby, information provided by SAL xxgarding the subject United States federal income tax consequences of the Investor AgreementsMerger, unlessinformation regarding dissenters' rights available to the Stockholders under the DGCL, information provided by SAL xxgarding all material interests of the officers and directors of SAL xx the transactions contemplated hereby, and solely all other information required under the DGCL and applicable securities laws. Each of JMAR and SAL xxll reasonably cooperate with the other in connection with the preparation of the Information Statement, including furnishing all information concerning itself to the extent, the Board determines, after consultation with counsel, that other as may be reasonably requested in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed connection with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholders.preparation

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject “Stockholder Meeting”), which shall be promptly called and held not later than May 31, 2024 (the “Stockholder Meeting Deadline”), a proxy statement, in each case, in a form reasonably acceptable to the Required Holders and Xxxxxx Xxxx & Xxxxxx LLP, at the expense of the Investor AgreementsCompany, within 20 days after the date of the Original Agreement, with the Company will file with obligated to reimburse the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject expenses of the Investor Agreements Xxxxxx Xxxx & Xxxxxx LLP incurred in accordance with Rule 312.03 of the NYSE Listed Company Manualconnection therewith in an amount not exceed $5,000. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreementsstatement, unlessif any, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting solicit each of the Company’s stockholders contemplated by this Agreement. If stockholder’s affirmative vote at the preliminary proxy statement has not been filed with Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for (x) the SEC prior to the date increase of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance authorized shares of Common Stock of the Company filing such preliminary proxy statement from 100,000,000 to 1,000,000,000 (the “Increase in Authorized”) and/or a reverse stock split of the issued and outstanding shares of Common Stock of the Company resulting in a similar impact on the Company’s authorized but unissued shares of Common Stock and (y) the approval of any matters requiring stockholder approval pursuant to the listing requirements of the Principal Market including, without limitation the issuance of more than 20% of the outstanding shares of Common Stock, in connection with the SECtransactions contemplated hereby (such affirmative approval being referred to herein as the “Stockholder Approval”, and to provide comments thereonthe date such Stockholder Approval is obtained, which comments the “Stockholder Approval Date”), and the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be filed in definitive form and distributed obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard shall cause an additional Stockholder Meeting to the proxy statementbe held on or prior to July 31, 2024. The Company will cause the stockholders meeting to which the proxy statement relates and at which If, despite the Company’s stockholders will be asked to approve reasonable best efforts the transactions that are Stockholder Approval is not obtained after such subsequent stockholder meetings, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderssemi-annually thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless The Company shall prepare and file with the NYSE informs SEC, as promptly as practicable after the Company that the NYSE rules date hereof but in no event later than twenty (including Rule 312.03 of the NYSE Listed Company Manual20) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date hereof, an information statement (the "INFORMATION STATEMENT"), substantially in the form that has been previously reviewed and reasonably approved by the Initial Purchasers and a counsel of their choice, informing the stockholders of the Original Agreement, Company of the receipt of the consents of the requisite stockholders approving resolutions increasing the authorized number of shares of common stock from 15,000,000 shares to 60,000,000 shares (the "STOCKHOLDER APPROVAL"). The Company will shall prepare and file with the SEC a preliminary proxy statement relating with respect to a special stockholders or annual meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 stockholders of the NYSE Listed Company Manual. The (the "STOCKHOLDER MEETING"), which shall be promptly called and held not later than June 30, 2006 (the "STOCKHOLDER MEETING DEADLINE") soliciting each such stockholder's affirmative vote for approval of, to the extent not previously adopted, the amended forms of Certificate of Incorporation and By-Laws of the Company will include in substantially the proxy statement forms attached as Exhibit Q and Exhibit R hereto, respectively (such affirmative approval being referred to herein as the unanimous recommendation "STOCKHOLDER CONSENT"), and the Company shall use its best efforts to solicit its stockholders' approval of its such resolutions and to cause the Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold recommend to the meeting of stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain the Stockholder Consent by the Stockholder Meeting Deadline. If, despite the Company’s stockholders contemplated by this Agreement. If 's best efforts the preliminary proxy statement has Stockholder Consent is not been filed with the SEC obtained on or prior to the date of the Original AgreementStockholder Meeting Deadline, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderseach calendar quarter thereafter until such Stockholder Consent is obtained.

Stockholder Approval. Unless the NYSE informs the Company that the NYSE rules (including Rule 312.03 of the NYSE Listed Company Manuala) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after As soon as practicable following the date of the Original Agreementhereof, the Company will prepare and file the Proxy Statement with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company ManualCommission. The Company will include in the proxy statement the unanimous recommendation of shall use its Board of Directors that the Company’s stockholders vote commercially reasonable efforts to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel (i) respond as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all any comments of the staff of the SEC promptlyCommission with respect thereto, and to (ii) have or cause the proxy statement Proxy Statement to be filed in definitive form cleared by the Commission as promptly as practicable and distributed (iii) cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as practicablepracticable thereafter. The Purchasers shall furnish all information concerning the Purchasers or their Affiliates, either by mail or by notice of internet accessincluding Xxxxxxx X. Xxxx, and in any event within five Business Days after as the Company may reasonably request and is informed required under applicable law in connection with the preparation of the Proxy Statement. The information supplied by the staff Purchasers for inclusion in the Proxy Statement shall not, at the date the Proxy Statement is first mailed to stockholders of the SEC that Company and at the time of the meeting of the stockholders, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they have no further comments with regard to the proxy statementwere made, not misleading. The Company will shall promptly notify each of the Purchasers upon the receipt of comments from the Commission or its staff or any request from the Commission or its staff for amendments or supplements to the Proxy Statement and shall provide each of the Purchasers with copies of all correspondence between the Company and its representatives, on the one hand, and the Commission and its staff, on the other hand. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the Commission with respect thereto, the Company (x) shall provide each of the Purchasers with an opportunity to review and comment on such document or response and (y) shall include in such document or response all comments reasonably proposed by the Purchasers. The Company shall use its commercially reasonable efforts to cause the stockholders meeting Proxy Statement to which comply in all material respects with the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject applicable provisions of the Investor Agreements to be held as promptly as practicable Exchange Act and no more than 40 days after the Company distributes the proxy statement to its stockholdersrules and regulations promulgated thereunder, including without limitation, Section 14(a) thereof.

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject “Stockholder Meeting”), which shall be promptly called and held not later than September 16, 2014 (the “Stockholder Meeting Deadline”), a proxy statement, soliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for (I) a reverse stock split of the Investor Agreements, within 20 days after Common Stock of at least 1 for 3 shares of Common Stock (the date “Stock Split Resolution”) and (II) the issuance of all of the Original Agreement, Securities as described in the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements Transaction Documents in accordance with Rule 312.03 applicable law and the rules and regulations of the NYSE Listed Company Manual. The Company will include in Principal Market (the proxy statement “Principal Market Resolution”) (such affirmative approval with respect to the unanimous recommendation of its Board of Directors that Stock Split Resolution, the Company’s stockholders vote “Stock Split Stockholder Approval”, and the date the Stock Split Stockholder Approval is obtained, the “Stock Split Stockholder Approval Date”, and such affirmative approval with respect to approve the transactions that are Principal Market Resolution, the subject “Principal Market Stockholder Approval”, and together with the Stock Split Stockholder Approval, the “Stockholder Approval”, and the date the Principal Market Stockholder Approval is obtained, the “Principal Market Stockholder Approval Date”, and the later of the Investor AgreementsPrincipal Market Stockholder Approval Date and the Stock Split Stockholder Approval Date, unlessthe “Stockholder Approval Date”), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments solicit its stockholders’ approval of the staff of the SEC promptly, such resolutions and to cause the proxy statement Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be filed in definitive form and distributed obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s stockholders as promptly as practicablereasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff shall cause an additional Stockholder Meeting to be held once in each of the SEC that they have no further comments with regard to the proxy statementthree subsequent calendar quarters thereafter until such Stockholder Approval is obtained. The Company will cause the stockholders meeting to which the proxy statement relates and at which If, despite the Company’s stockholders will be asked to approve reasonable best efforts the transactions that are Stockholder Approval is not obtained after such subsequent stockholder meetings, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholderssemi-annually thereafter until such Stockholder Approval is obtained.

Stockholder Approval. Unless (a) As expeditiously as possible following the NYSE informs the Company that the NYSE rules (including Rule 312.03 execution of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are the subject of the Investor Agreements, within 20 days after the date of the Original Agreement, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements in accordance with Rule 312.03 of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, Agreement and in any event within five Business Days one (1) business day after the execution of this Agreement, the Company is informed shall mail the Disclosure Statement, in a form reasonably acceptable to the Buyer, to the Company Stockholders. The Disclosure Statement shall include (i) a summary of the Merger and this Agreement (which summary shall include a summary of the terms relating to the indemnification obligations of the Equity Holders, the escrow arrangements and the authority of the Representative, and a statement that the adoption of this Agreement by the staff Company Stockholders and/or the acceptance of any portion of the SEC Closing Merger Consideration shall constitute approval of such terms) and (ii) a statement that they have no further comments with regard appraisal rights are available for the Company Shares pursuant to Section 262 of the proxy statementDelaware General Corporation Law and a copy of such Section 262. The Company will shall use all Reasonable Best Efforts to secure and cause to be filed with the stockholders meeting Company immediately after the execution of this Agreement, consents from Company Stockholders necessary to secure the Requisite Stockholder Approval, which consents shall be in a form that is reasonably acceptable to the proxy statement relates and at which Buyer. As expeditiously as possible following the Company’s stockholders will be asked to approve the transactions that are the subject receipt of the Investor Agreements to be held as promptly as practicable and no more than 40 days after Requisite Stockholder Approval, the Company distributes shall deliver to the proxy statement Buyer a certificate executed on behalf of the Company by its Secretary and certifying that the Requisite Stockholder Approval has been obtained. The Company shall also send, pursuant to its stockholdersSections 228 and 262(d) of the Delaware General Corporation Law, a written notice to all stockholders of the Company that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the Company Stockholders and that appraisal rights are available for their Company Shares pursuant to Section 262 of the Delaware General Corporation Law (which notice shall include a copy of such Section 262), and shall promptly inform the Buyer of the date on which such notice was sent.

Stockholder Approval. Unless (i) If the NYSE informs Common Stock is listed on an Eligible Market (as defined in the Registration Rights Agreement) other than the Principal Market (the "NEW PRINCIPAL MARKET") and the issuance of the Conversion Shares and Warrant Shares as contemplated under the Transaction Documents would exceed that number of shares of Common Stock which the Company that may issue without breaching the NYSE Company's obligations under the rules (including Rule 312.03 or regulations of the NYSE Listed New Principal Market, then the Company Manual) do not require (whether because shall obtain the NYSE requirement has been satisfied by prior stockholder approvals, or because approval of an exception, a waiver or otherwise) approval its stockholders as required by the Company’s applicable rules of the New Principal Market for issuances of the Conversion Shares and Warrant Shares in excess of such amount. At such time, the Company shall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the transactions that are Company (the subject of the Investor Agreements"STOCKHOLDER MEETING"), within 20 which shall be promptly called and held not later than 75 days after the date earlier of (i) the New Principal Market indication of and (ii) the Company becoming aware of, any limitation imposed by the New Principal Market on the issuance of Conversion Shares or Warrant Shares (the "STOCKHOLDER MEETING DEADLINE"), a proxy statement, substantially in the form which has been previously reviewed by the Buyers and Xxxxxxx Xxxx & Xxxxx LLP, at the expense of the Original AgreementCompany, soliciting each such stockholder's affirmative vote at the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which Stockholder Meeting for approval of resolutions providing for the Company’s stockholders will be asked to approve the transactions that are the subject 's issuance of all of the Investor Agreements Securities as described in the Transaction Documents in accordance with Rule 312.03 applicable law and the rules and regulations of the NYSE Listed Company Manual. The Company will include in New Principal Market and such affirmative approval being referred to herein as the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless"STOCKHOLDER APPROVAL"), and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with (i) solicit its stockholders' approval of such resolutions and to (ii) cause the Investors and their counsel and, Board of Directors of the Company to recommend to the extent it is not unreasonable for it to do so, to resolve and comply with all comments of the staff of the SEC promptly, and to cause the proxy statement to be filed in definitive form and distributed to the Company’s stockholders as promptly as practicable, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statementapprove such resolutions. The Company will cause shall be obligated to use its reasonable best efforts to obtain the stockholders meeting to which Stockholder Approval by the proxy statement relates and at which Stockholder Meeting Deadline. If, despite the Company’s stockholders will be asked 's reasonable best efforts the Stockholder Approval is not obtained on or prior to approve the transactions that are Stockholder Meeting Deadline, the subject of the Investor Agreements Company shall cause an additional Stockholder Meeting to be held as promptly as practicable every six (6) months thereafter until such Stockholder Approval is obtained or the Notes and the Warrants are no more than 40 days after the Company distributes the proxy statement to its stockholderslonger outstanding.

Stockholder Approval. Unless The Company shall, at its next regularly scheduled annual or special meeting of stockholders, but in no event later than July 15, 2006 (the NYSE informs “Stockholder Meeting Deadline”), include proposals for stockholder approval (as required by the Company that the NYSE applicable rules (including Rule 312.03 and regulations of the NYSE Listed Company ManualNational Market) do not require (whether because with respect to the NYSE requirement has been satisfied transactions contemplated by prior stockholder approvalsthe Transaction Documents, or because of including a proposal approving an exception, a waiver or otherwise) approval by amendment to the Company’s stockholders Certificate of Incorporation to increase the number of authorized shares of Common Stock to at least 50,000,000 (the “Amendment”), and a proposal approving the issuance of shares upon conversion of the transactions that are the subject Notes and exercise of the Investor Agreements, within 20 days after Warrants or as otherwise contemplated by the date terms of the Original AgreementNotes and Warrants, the Company will file with the SEC a preliminary proxy statement relating to a special stockholders meeting at which in each case in excess of 19.99% of the Company’s stockholders will be asked to approve outstanding shares of Common Stock on the transactions that are Closing Date (the subject “Issuance Approval” and, together with the approval of the Investor Agreements in accordance Amendment, the “Stockholder Approval”), with Rule 312.03 the recommendation of the NYSE Listed Company Manual. The Company will include in the proxy statement the unanimous recommendation of its Company’s Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreements, unless, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting of the Company’s stockholders contemplated by this Agreement. If the preliminary proxy statement has not been filed with the SEC prior to the date of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance of the Company filing such preliminary proxy statement with the SEC, and to provide comments thereon, which comments the Company shall give due and reasonable considerationproposals be approved. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult solicit proxies from its stockholders in connection therewith and vote such proxies in favor of such proposals, and each of the parties identified on Schedule 4(s) hereto shall have entered into a voting agreement with the Investors and their counsel andCompany, substantially in the form of Exhibit H (the “Voting Agreements”), that obligates them to vote in favor of such proposals. To the extent it is not unreasonable for it the Company has the legal power, authority and capacity to do so, the Company shall cause the proxies named pursuant to resolve and comply with the Voting Agreements to vote all comments of securities subject to the staff of Voting Agreements as directed in the SEC promptlyproxies delivered pursuant to the Voting Agreements, and to the extent the Company does not have such legal power, authority and capacity, the Company shall use its best efforts to cause the proxy statement to be filed in definitive form and distributed proxies named pursuant to the Company’s stockholders Voting Agreements to vote all securities subject to the Voting Agreements as promptly as practicabledirected in the proxies delivered pursuant to the Voting Agreements. If the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, either by mail or by notice of internet access, and in any event within five Business Days after the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will shall cause the stockholders an additional stockholder meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and every six months thereafter until such Stockholder Approval is obtained or the Notes are no more than 40 days after longer outstanding and, in connection therewith, the Company distributes the proxy statement to shall otherwise comply with its stockholdersobligations under this Section 4(s).

Stockholder Approval. Unless the NYSE informs the The Company that the NYSE rules (including Rule 312.03 shall provide each stockholder entitled to vote at a special meeting of the NYSE Listed Company Manual) do not require (whether because the NYSE requirement has been satisfied by prior stockholder approvals, or because of an exception, a waiver or otherwise) approval by the Company’s stockholders of the transactions that are Company (the subject “Stockholder Meeting”), which shall be promptly called and held not later than April 15, 2024 (the “Stockholder Meeting Deadline”), a proxy statement, in each case, in a form reasonably acceptable to the Buyers and Xxxxxx Xxxx & Xxxxxx LLP, at the expense of the Investor AgreementsCompany, within 20 days after the date of the Original Agreement, with the Company will file with obligated to reimburse the SEC a preliminary proxy statement relating to a special stockholders meeting at which the Company’s stockholders will be asked to approve the transactions that are the subject expenses of the Investor Agreements Xxxxxx Xxxx & Xxxxxx LLP and Blank Rome LLP incurred in accordance with Rule 312.03 of the NYSE Listed Company Manualconnection therewith in an amount not exceed $15,000. The Company will include in the proxy statement the unanimous recommendation of its Board of Directors that the Company’s stockholders vote to approve the transactions that are the subject of the Investor Agreementsstatement, unlessif any, and solely to the extent, the Board determines, after consultation with counsel, that in the exercise of its fiduciary duties it must withdraw or modify that recommendation. A withdrawal or modification of the recommendation of the Board shall not affect the obligations of the Company to hold the meeting solicit each of the Company’s stockholders contemplated by this Agreement. If stockholder’s affirmative vote at the preliminary proxy statement has not been filed with Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for the SEC prior approval, after giving effect to the date amendments and transactions contemplated hereby, of (x) the increase of the Original Agreement, the Investors and their counsel shall have the opportunity to review such preliminary proxy statement in advance authorized shares of the Company filing such preliminary proxy statement from 625,000,000 to 5,000,000,000 and (y) the issuance of all of the Underlying Shares, in excess of the aggregate number of Underlying Shares previously approved by the stockholder’s of the Company, in compliance with the SECrules and regulations of the principal Trading Market of the Common Stock (without regard to any limitations on conversion set forth in the Debentures and/or exercise of the Warrants, as applicable (such affirmative approval being referred to herein as the “Stockholder Approval”, and to provide comments thereonthe date such Stockholder Approval is obtained, which comments the “Stockholder Approval Date”), and the Company shall give due and reasonable consideration. The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with solicit its stockholders’ approval of such resolutions and to cause the Investors and their counsel and, Board of Directors of the Company to recommend to the extent it stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s reasonable best efforts the Stockholder Approval is not unreasonable for it obtained on or prior to do sothe Stockholder Meeting Deadline, the Company shall cause an additional Stockholder Meeting to resolve and comply with all comments of be held on or prior to July 15, 2024. If, despite the Company’s reasonable best efforts the Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company shall cause an additional Stockholder Meeting to be held semi-annually thereafter until such Stockholder Approval is obtained. If the staff of the SEC promptly, Securities and to cause Exchange Commission initiates a review of the proxy statement to be filed in definitive form and distributed to contemplated by this Section 6(c), the Company’s stockholders “Stockholder Meeting Deadline” shall mean June 1, 2024, provided that the Company shall respond as promptly as practicable, either by mail or by notice of internet access, and in reasonably practicable to any event within five Business Days after comments received from the Company is informed by the staff of the SEC that they have no further comments with regard to the proxy statement. The Company will cause the stockholders meeting to which the proxy statement relates and at which the Company’s stockholders will be asked to approve the transactions that are the subject of the Investor Agreements to be held as promptly as practicable and no more than 40 days after the Company distributes the proxy statement to its stockholdersstaff.